R v Brandon; R v Flaus

[2014] NSWDC 337

District Court

New South Wales

Medium Neutral Citation:	R v Brandon; R v Flaus [2014] NSWDC 337
Decision date:	05 November 2014
Jurisdiction:	Criminal
Before:	Cogswell SC DCJ
Decision:	Offender Brandon: Sentenced to a 2 year good behaviour bond pursuant to s 9 Crimes Sentencing Procedure Act 1999 (NSW) Offender Flaus: Sentenced to a 2 year good behaviour bond pursuant to s 9 Crimes Sentencing Procedure Act 1999 (NSW)
Catchwords:	CRIMINAL LAW - particular offences - property offences - aggravated break, enter and steal - sentence - gravity of offences - lower end of range of objective seriousness - immature and childish crimes - co-offenders - whether parity principle for co-offenders applies between juveniles and adults - relevant factors - youth of offenders - pleas of guilty at first available opportunity
Legislation Cited:	Crimes Act 1900 (NSW), s 112(2) Crimes (Sentencing Procedure Act) 1999 (NSW), ss 5, 9, 21A
Cases Cited:	R v Ellis (1986) 6 NSWLR 603 R v Ponfield (1999) 48 NSWLR 327
Category:	Sentence
Parties:	Regina (Crown) Andrew Brandon (Offender) Jason Flaus (Offender)
Representation:	Counsel: P Krisenthal (Offender Brandon) R Suters (Offender Flaus) Solicitors: H Fitzhardinge, NSW Office of the Director of Public Prosecutions (Crown)
File Number(s):	2014/00059301; 2014/00059304

Judgment

1. Andrew Brandon and Jason Flaus were involved in what one of their counsel called an “immature and childish exercise”. But that exercise amounted to a serious crime. They were not professional thieves. They were pushing along a shopping trolley at twenty to four in the morning through Raymond Terrace. The police became understandably suspicious when they saw them and found the shopping trolley full of what turned out to be stolen goods.

2. This happened on Tuesday 25 February 2014. The police arrested both men and interviewed them. When Mr Brandon was interviewed he owned up to breaking into the local Woolworths in Raymond Terrace not long before police saw them in the street. Not only that, Mr Brandon volunteered that they had broken into the same Woolworths a few days beforehand.

3. Both men were charged with two crimes. Each was the same, called aggravated break, enter and steal in company. The aggravation is being in company. They are crimes against s 112(2) of the Crimes Act1900 (NSW). Parliament regards that crime very seriously. That can be seen by the fact that Parliament has fixed a maximum penalty of twenty years imprisonment to the offence. Not only that, Parliament has fixed a standard non-parole period of five years to the offence.

4. Each man pleaded guilty at what is agreed by Mr H Fitzhardinge, who appears for the Director of Public Prosecutions, was the earliest available opportunity.

5. They are before me today to be sentenced for their crimes. Mr Brandon is represented by Mr P Krisenthal of counsel and Mr Flaus is represented by Ms R Suters of counsel.

6. It is important to say something about each of the young men. Andrew Brandon has just recently turned nineteen. He was only eighteen and a few months when he committed these offences. He has no criminal record at all and that will provide him some credit. Jason Flaus is not much older. He is twenty-four and had just turned twenty-four when he committed the offence. He does have a criminal record which includes common assault and contravening an apprehended violence order, as well as some traffic offences.

7. We are told something about each young man by presentence reports. Nerida Newton in her report about Andrew Brandon points out that he is living with his mother and stepfather in Muswellbrook and was brought up in a supportive relationship, although he had some issues with his brothers. Mr Krisenthal pointed out that in fact those issues had led to him leaving home and he was living away from home when he committed these offences. He could not explain to Ms Newton why he had committed the offences other than to say that he was just “following my mates”. He was apparently hungry and could not afford food. He is undertaking a course in language, numeracy and literacy.

8. It was Racquel Mason who prepared the presentence report for Jason Flaus. She pointed out that he had been supervised before on a bond he received for the assault and had what she described as “an unsatisfactory response to supervision”. But she also noted that his “behaviour was transient and resistant”. That may be explained by her observation that he is homeless in the sense that he is living in temporary accommodation with friends. Indeed, his parents are in the same situation.

9. Neither young man is in employment at the moment.

10. Ms Suters, who appeared for Mr Flaus, called him to give evidence. He confirmed his accommodation situation and affirmed the support he receives from his family. He appreciated the seriousness of the charge. To his credit, he explained that he did not want his parents in court because of the stress that it would cause them. He seemed to demonstrate a sense of the impact on others of his behaviour. He acknowledged a serious drinking problem which he is now moderating. He has problems with prohibited drugs but described his behaviour in that regard as social. He has a plan to get his driver licence and a job and to get some permanent accommodation for himself. He has been engaged in community employment through a Commonwealth government agency and has enjoyed the work that he has done at the botanical gardens at Raymond Terrace. He acknowledged, when Mr Fitzhardinge cross-examined him, that it was the police who told him about the earlier break and enter at Woolworths and he acknowledged his role in that during the interview.

11. Ms Suters prepared very helpful written submissions which were also adopted by Mr Krisenthal. I accept her submissions describing the relative seriousness of the offences as being quite low for the reasons that she gave in those submissions (which became MFI 1). She also compared her client’s case with the guideline judgment given by the Court of Criminal Appeal for these kinds of crimes in R v Ponfield (1999) 48 NSWLR 327. Again, there were distinctions which show that her client’s and Mr Krisenthal’s client’s participation was less serious. I also agree that there were no aggravating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) and I accept her submissions regarding the mitigating factors.

12. I do not accept her submission regarding a discount for her client according to the principles enunciated by the Court of Criminal Appeal in R v Ellis (1986) 6 NSWLR 603. It became apparent that her client was disentitled to this when he frankly and obviously honestly acknowledged that it was the police who alerted him to the earlier break-in. It seems that Mr Brandon or one of the other co-offenders - there were more than these two involved - told the police about the earlier break-in.

13. Ms Suters points to the fact that the three co-offenders of these two men were all juveniles. She refers me to authority which supports the proposition that although the parity principle is not strictly applicable, those sentences are not irrelevant. She pointed out that two of the juvenile offenders received non-custodial sentences. One of them received a control order but had an extensive record.

14. Both Mr Krisenthal and Ms Suters point me to s 5 of the Crimes (Sentencing Procedure) Act which prohibits me from sentencing an offender to imprisonment unless I am satisfied “having considered all possible alternatives, that no penalty other than imprisonment is appropriate”. I accept that submission. The objective seriousness of the offences is very low and of particular significance is the fact that both men, particularly Andrew Brandon, are very young. A judge hesitates before sending into adult custody for the first time people as young as these two men are.

15. Both have pleaded guilty at the earliest available opportunity. That is of benefit to the criminal justice system and it also indicates their contrition. Mr Brandon though does get the benefit of a discount because he owned up to the earlier Woolworths break-in.

16. I accept Mr Krisenthal’s submission that this crime was immature and childish.

17. Mr Fitzhardinge fairly acknowledged that a good behaviour bond for each man was in the available range of sentences. I therefore propose to deal with them in that way.

HIS HONOUR: I am just going to depart from my reasons. I am going to impose that in a moment and I would like Mr Fitzhardinge, Ms Suters and Mr Krisenthal to be thinking about the conditions, apart from the standard ones.

18. Mr Brandon, instead of imposing a sentence of imprisonment on you, I make an order directing you to enter into a good behaviour bond for two years. I make that direction under s 9 of the Crimes (Sentencing Procedure) Act 1999. The terms or conditions of the good behaviour bond are these:

1. That you be of good behaviour

2. That you notify the registrar of this Court of any change in your address

3. That you come to court if you receive a notice to do so.

19. Mr Flaus, instead of imposing a sentence of imprisonment on you, I make an order under s 9 of the Crimes (Sentencing Procedure) Act 1999 directing you to enter into a good behaviour bond for two years. The conditions of that bond are:

1. That you be of good behaviour

2. That you notify the registrar at this Court of any change in your address

3. That you attend court if called upon to do so.

HIS HONOUR: I am going to ask each of your counsel and the prosecutor about any other conditions.

KRISENTHAL: In relation to Mr Brandon, your Honour, the Probation and Parole authorities seem to think that it may be appropriate for him to be supervised and I'd support that conclusion.

HIS HONOUR: Good, and Ms Suters?

SUTERS: Your Honour, I would also say that there should be the inclusion of to accept the supervision of Probation and Parole. Page 2 of Mr Flaus’ report also recommends there can be a number of programmes that they can assist him with.

HIS HONOUR: Good, thanks. Do you agree, Mister--

FITZHARDINGE: I agree, your Honour.

HIS HONOUR: Thanks.

20. Mr Brandon, a final condition of your good behaviour bond is that you accept supervision by Community Corrections and accept all reasonable recommendations and directions which any officer of that service gives you regarding continual engagement with local job network providers and engaging in pro-social activities.

21. Mr Flaus, a further condition of your good behaviour bond is that you accept supervision by Community Corrections and all reasonable recommendations and directions from officers of that service, including referral to alcohol or other drug use intervention and monitoring of your attendance, monitoring of your mental health and any intervention, and monitoring and encouragement in your employment seeking.

OFFENDER FLAUS: Yep.

HIS HONOUR: Okay? Anything else at all?

SUTERS: Would your Honour perhaps include a condition that ties into the final condition for Mr Flaus that he’s to report to the Maitland Community Corrections office within seven days? Just so that they can be aware he has now entered that bond and aware of--

HIS HONOUR: Good, and what about your client?

KRISENTHAL: My client, Muswellbrook, your Honour, also within that seven days.

22. Mr Flaus, you are to report to the Community Corrections office at Maitland on or before next Thursday 13 November 2014.

23. Mr Brandon, you are to report to the Muswellbrook Community Corrections office on or before next Thursday 13 November 2014.

OFFENDER BRANDON: Yes, your Honour.

HIS HONOUR: Now, look, you two, I will speak to both of you. You have been lucky and unlucky. You did a really stupid thing which, as I said, the community regards as a serious crime. You broke and entered - a commercial break and enter into a supermarket - and Parliament regards that as a twenty year gaol term. That is the kind of crime you have committed. It is not something which carries two years or a fine or a bad traffic record or anything like that. You are in the big league. Now, it was a stupid and silly offence and relatively minor, which is why I have agreed with each of your counsel to give you a good behaviour bond, which is pretty lenient, and in doing that I am not putting anyone at risk except the community. So I am going to let you two out for two years on good behaviour and that means that the community risks you two breaking out again and doing the same kind of thing, but I am confident that you will not.

You are both on a good behaviour bond which you will have to go and sign up for I think in the registry here. Both of you have to attend, you to Muswellbrook, Mr Brandon, on or before Thursday of next week and Mr Flaus to Maitland, same time. The conditions of your bond are good behaviour. One of you has had the bond. Who had the bond before?

OFFENDER FLAUS: Me.

HIS HONOUR: Yeah, you have. So you know what a good behaviour bond is. They were not very impressed by your cooperation last time, so I want you to toe the line this time. You were showing a degree of maturity when you gave evidence.

OFFENDER FLAUS: Yep.

HIS HONOUR: But you have got to both stay out of trouble. So no little stashes of dope or getting drunk or drink driving or anything like that. You have got to stay out of trouble for two years, which means you get on with your lives and start changing things around.

If you change your address, and particularly you, Mr Flaus, if you have to move you have got to let them know. Send them an e-mail, write them a letter and post it, come and tell them where you are living. And if you get a notice in the mail to say you have got to turn up, you turn up. We do not want to have to send the sheriff or the police out after you.

The final conditions are the most important and that is when you turn up next week or later this week to Community Corrections and let them supervise you. You, Mr Brandon, will be supervised by them and they are going to help you with the job networks and pro-social activities so that you get to mix with the right people. You, Mr Flaus, the areas they are going to work on is alcohol and other drug intervention and monitoring. It sounds as though you have made a start on that, which is very good.

OFFENDER FLAUS: Yep.

HIS HONOUR: And mental health, because people can get very stressed living the kind of existence you are. You do not need to be told that, by the sounds of it. And to encourage you in getting a job, and that is something you want to do yourself.

This is an opportunity for you two young men to get your lives back on track and get on with your lives so you can have a life which will not be interfered with by this sort of thing. Do you both understand?

OFFENDER BRANDON: Yes, your Honour.

OFFENDER FLAUS: Yes, your Honour.

HIS HONOUR: All right, good luck.

**********

Decision last updated: 23 June 2015