R v Alexander Carl PARKES

[2007] NSWDC 376

CITATION:	R v Alexander Carl PARKES [2007] NSWDC 376
HEARING DATE(S):	25 May 2007
EX TEMPORE JUDGMENT DATE:	25 May 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	Sentenced to imprisonment for a period of 2 years. Suspended under s 12 Crimes Sentencing Procedure Act upon entering into a bond to be of good behaviour
CATCHWORDS:	Criminal Law - Sentence - Aggravated break, enter and steal - In company - Drug user - heavy consumer of alcohol
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
PARTIES:	The Crown Alexander Carl Parkes
FILE NUMBER(S):	DC 2006/11/0965
SOLICITORS:	NSW DPP Gregory P Elks Solicitors

SENTENCE

1 HIS HONOUR: Alexander Carl Parkes appears for sentence today having pleaded guilty to an offence of being an accessory after the fact to an offence of break enter and steal in circumstances of aggravation. The circumstance of aggravation was that the principal offender Mr Shearer was in company with this offender Mr Parkes. So Mr Parkes’ involvement in the offence was, according to the indictment, that he was an accessory after an offence that he was involved in as the primary offender, he having been in company with Mr Shearer.

2 This may well be yet another case of creative plea bargaining in which representatives of the Crown seem to regard it as a challenge to give interesting legal problems to District Court Judges. I mean no criticism at all of the present representative of the Crown, I can tell from the signature on the indictment that he is not the person responsible for the present form of the indictment. Nevertheless despite the creative nature of the offence to which Mr Parkes has pleaded guilty I am able to sentence him.

3 The circumstances of the offence are that on 4 July last year Mr Shearer and Mr Parkes went to a residential home in North Narrabeen. When they got there the offender performed the role of the cockatoo waiting outside the premises whilst Mr Shearer went inside. He broke in by forcing some locks and he began to remove electrical equipment. There were people at home and one of them was attracted by the noise of what was going on.

4 The two occupants of the house confronted Mr Shearer. He reacted by pulling a syringe from the right-hand pocket of his tracksuit pants. At that stage he was being held but the person holding him released him as soon as the syringe was presented. Whilst all this was going on, this offender was watching through the front doors. After Mr Shearer was able to make good his escape by presenting the syringe he and the offender ran away. They were arrested soon afterwards. The offender spent one day in custody following his arrest.

5 The offender is now thirty-two years of age. He has been a heavy drug user and a heavy consumer of alcohol at times, however, there have been periods of abstinence as well. Unfortunately those periods of abstinence have been followed by relapses as in the present case. On 4 July 2006 the offender was a drug user and was at that stage drinking heavily. He had undergone some rehabilitation programs before then and they were successful for a short time. It was the fact that the offender relapsed and needed money for drugs which led to the present offence being committed. Even though the offender has pleaded guilty to be an accessory to the offence of Mr Shearer it remains a very serious matter. The maximum penalty for the offence is twenty years imprisonment although there is no standard non-parole period because of the accessorial nature of the offender’s liability. Quite recently the offender has commenced working again. At the time of the preparation of the pre-sentence report he was not working and had a certificate indicating that he was unable to work due to mental illness issues. However, about five weeks ago the offender started working for a removalist. He is not in regular employment, he turns up in the morning, if work is available it is given to him. Nevertheless, the fact that he is working when he can is a very important matter which I have taken into account. This is the offender’s first employment in nine months. He is also at the moment attending the Northern Beaches Mental Health Service. There are prospects of rehabilitation which could easily be undone.

6 Of course the fact remains that I must impose a sentence which reflects the objective gravity of the offender’s conduct. It is notorious that those who are the victims of such offences feel less safe in their own homes. Even though the financial loss to the victims of the offence was limited, the emotional consequences I am sure are considerable and long lasting.

7 The offender needs to have imposed upon him a sentence which does not lead to him having a justifiable sense of grievance when he compares that sentence with the sentence I earlier imposed on Mr Shearer. I sentenced him to imprisonment setting a non-parole period of eighteen months, with a head sentence of three years. When I compare Mr Shearer’s case with the present I notice that Mr Shearer had a criminal record which was much worse. There was a standard non-parole period attached to his offence and because he was the one who went into the house and removed the property, his involvement was much deeper.

8 Perhaps of most importance is the circumstance that Mr Shearer was armed and produced the weapon with which he was armed upon being confronted by the home owners. The offender is not to be sentenced on that basis. There is no charge in relation to Mr Shearer being armed, there is no material before me to suggest that he was aware that Mr Shearer was, firstly, armed and, secondly, would produce the syringe as a weapon when confronted. Those circumstances suggest that the offender should receive a lesser sentence than that imposed on Mr Shearer. The offender pleaded guilty at the first available opportunity and so I would discount the sentence by approximately twenty five per cent to reflect that circumstance.

9 When sentencing Mr Shearer I noted that although the circumstances of aggravation relied on was that he was in company, the Crown could have also relied on the circumstance that there were people in the home at the time. I refer to s 105A(2)(a) of the Crimes Act. In that regard that circumstance also applies to this offender. The offence must also have been planned to the extent that roles had to be allocated, the offender performing the role of the lookout.

10 The offender has expressed his remorse for what he did that day. I cannot say that the offender is unlikely to re-offend or has good prospects of rehabilitation. Certainly there are prospects of rehabilitation but whether the offender rehabilitates or not is largely a matter under his control. Earlier I said that it is important that if possible that steps that the offender has taken towards rehabilitating himself are not undone, although it is clear that a custodial sentence is required. I am satisfied that that sentence is at such a level that I can suspend that term of imprisonment. In that regard I note the head sentence of three years imposed on Mr Shearer in circumstances where Mr Shearer deserves to be punished more harshly than Mr Parkes.

11 I am therefore satisfied that I should sentence the offender to imprisonment for a period of two years. But under s12 of the Crime (Sentencing Procedure) Act I order suspension of the imprisonment for a period of two years today upon the offender entering into a good behaviour bond for that period. The conditions applying during the term of the bond are as follows. The offender is to be of good behaviour. He is to accept the supervision of the Probation and Parole Service and obey all their reasonable directions. He is to attend courses, counselling and the like as required by the Probation and Parole Service and he is to continue to attend the Northern Beaches Mental Health Service at the Queenscliff Community Health Centre and comply with treatment suggested by them. In order to commence the process by which the offender is to be supervised., he is to attend the Dee Why District office of the Probation and Parole Service within five days of today.

12 HIS HONOUR: Anything else Mr Elks, Mr Crown.

13 ELKS: No your Honour.

14 KIMBELL: No your Honour.

15 HIS HONOUR: Now Mr Parkes would you mind telling me your address.

16 OFFENDER: ………

17 HIS HONOUR: …… and the suburb, …….wasn’t It? ……. Mr Parkes you have heard what I’ve just said about the bond that you’re on?

18 OFFENDER: ..(not transcribable).. a suspended sentence means that I’m on that good behaviour bond for a period, if I commit another crime I get done for that crime no matter what sentence is made. Plus added to that is the remaining time of the suspended sentence.

19 HIS HONOUR: Close. If you commit an offence or breach this bond in any other way you’ll go to goal for two years. Assume that a year from now you commit an offence, you don’t go to gaol for a year, you go to gaol for two years.

20 OFFENDER: Yes.

21 HIS HONOUR: Okay, it’s hanging over your head for two years. Now it’s not only committing another offence that could lead you into gaol, it’s also breaching the bond in other ways. So if you, for example, fail to accept the supervision of Probation and Parole Service and you don’t comply with the bond in that respect you can go to gaol, understand?

22 OFFENDER: Yes your Honour.

23 HIS HONOUR: Mr Parkes I just have to ask you, do you agree to be bound by the conditions of the bond that I’ve announced?

24 OFFENDER: I agree your Honour .

25 HIS HONOUR: Good thank you. The bond will be posted out to you at ………. It is very important Mr Parkes for your benefit that you do what is required under the bond. In particular, to start with, you’ve got to go to the Dee Why office of Probation and Parole Service within five days. So that’s early next week do you understand?

26 OFFENDER: Yes your Honour.

27 HIS HONOUR: You then have to do whatever they tell you to do. If you do this for two years then you won’t go to gaol. If however you breach the bond then you will go to gaol and you know whose fault that will be.

28 OFFENDER: Yes your Honour.

29 HIS HONOUR: It will be yours won’t it?

30 OFFENDER: Yes your Honour.

31 ADJOURNED

**********