R v Brett Sharpley
[2014] NSWDC 166
•12 September 2014
District Court
New South Wales
- Amendment notes
Medium Neutral Citation: R v Brett SHARPLEY [2014] NSWDC 166 Decision date: 12 September 2014 Before: Judge Yehia SC DCJ Decision: The offender is convicted.
1. On first charge of aggravated break enter and steal pursuant to s 9 of the Crimes (Sentencing Procedure) Act the offender is sentenced to a good behaviour bond of two years, subject to conditions set out at [80].
2. On second charge of aggravated break enter and steal pursuant to s 86 of the Crimes (Sentencing Procedure) Act the offender is ordered to perform 100 hours of community service work.
Catchwords: Aggravated break and enter, sentencing of Aboriginal offenders, intoxication Legislation Cited: Children's (Criminal Procedure) Act 1987
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999Cases Cited: Blackman v Waters [2001] NSWCCA 121
BP v R [2010] NSWCCA 159
Bugmy v The Queen [2013] HCA
Fuller-Cust v The Queen (2002) 6 VR 496
Latouf (NSWCCA 12/12/1996)
Markarian v R [2006] HCA 25
Muldrock v The Queen [2011] HCA 39 Munda v Western Australia [2013] HCA 38
Neal v R (1982) 149 CLR 305
R v Clifford [2008] NSWCCA 190
R v Fernando (1992) 76 A Crim R 52
R v Millwood [2012] NSWCCA 2
R v Ponfield & Ors (1999) 48 NSWLR 327
Yardley v Bates (1979) 22 SASR 108Category: Sentence Parties: Director of Public Prosecutions (Crown)
Brett Sharpley (Offender)Representation: Ms McIvor for the Crown
Mr Lawrence for the Offender
File Number(s): 13/380114 Publication restriction: Nil
SENTENCE
HER HONOUR: Brett Sharpley is a 19 year old Aboriginal man whose family have always resided at Namoi Mission in Walgett. The uncontested evidence before me is that the community from which the offender comes and in which he has been raised bears the scars of decades of neglect and deprivation.
He is a product of that community and it is therefore necessary that I consider the various purposes of sentencing and assess his level of moral culpability bearing in mind those socio-economic factors. Failure to do so would be a failure to fulfil the principle of individualised justice.
The Namoi Mission is one of two Aboriginal communities located close to Walgett. It is situated about 3 kilometres north of Walgett. The second community is Gingie Mission which is situated about 10 kilometres west of Walgett. Both communities are home to up to 100 indigenous families in total. Reserves were established under the Aboriginal Protection Act, both in and out of New South Wales towns as early as the 1880s. Namoi Reserve was established in 1952.
The Aboriginal people living at Walgett now are mainly Gamilaraay, Yuwaalaraay and Ngiyambaa people, descendants of the traditional owners of those lands. Many of them were forced by the government to leave their country and live in missions and reserves elsewhere. However they kept coming back to live in Walgett. Even in the 1960s Aboriginal people could not enter Walgett after 6pm.
This material has been placed before me in written submissions on behalf of the offender and is not in dispute. The Walgett Gamilaraay Community Working Party in 2005 identified the following main issues facing their community:
- Racism and stereotyping of Aboriginal people.
- Inequality and lack of opportunity.
- Lack of resources and poor living conditions.
- Welfare mentality.
- Difficulty in accessing services.
- Low levels of literacy and numeracy throughout the community.
- Low student retention and achievement rates and high rates of truancy within the education system and unacceptably high levels of criminal activity and antisocial behaviour.
There is nothing to suggest that these issues are showing any signs of abating. The uncontested evidence given by Gary Trindall in these sentence proceedings is as follows.
Mr Trindall has been employed as a field officer for the Aboriginal Legal Service since 2006. He is based in Walgett and has lived in that community for approximately 35 years. In 1998 he was employed with the New South Wales police service as a community liaison officer. In that capacity he witnessed firsthand the extent of the devastating effect of alcohol abuse and violence on members of his community.
In 2004 he left the police force to manage property for the Aboriginal Land Council. He was also the chairperson of the Walgett Community Working Group and was able to confirm the findings of the Walgett Gamilaraay Community Working Party to which reference has been made in written and oral submissions on behalf of the offender.
Mr Trindall has had long-standing and first-hand experience of the problems and difficulties facing the community in Walgett in both a personal and professional capacity. He identified severe social deprivation including domestic violence, violence generally, substance abuse, unemployment and a high incidence of break enter and steal offences.
He also identified significant levels of illiteracy particularly in the younger generation. In the course of his employment he has come across a number of young Aboriginal people who are unable to spell their surnames. This level of illiteracy in 21st century Australia is a cause of considerable concern and provides a further insight into the entrenched disadvantages inherent in the Walgett community.
Mr Trindall gave evidence that alcoholism ran rampant on the Namoi Mission. It seems that his house was the only alcohol-free zone. He described occasions where young people sought refuge at his home knowing that it was alcohol-free. Come Friday nights, he experienced up to six or seven children seeking the sanctuary of the dirt floor in his home. He described eloquently the entrenched social and economic deprivation faced by members of the Namoi community.
With specific reference to this offender he gave evidence that he has known the offender and his family for a number of years. The offender's parents are both alcoholics. The offender's father was described as being a good man when not drinking but when drinking becomes aggressive and it brings out the worst in him.
The offender grew up in an environment of violence and alcohol abuse in a community with little opportunity for advancement, economic independence or access to services. Not only did the offender grow up witnessing his parents' alcohol abuse and regular violent incidents in his home, he also witnessed it in his wider community.
The Juvenile Justice Report which is exhibit 2 in these proceedings sets out the following relevant factors with respect to the offender. He has lived an unpredictable and transient lifestyle, void of adult supervision and guidance. His literacy and numeracy levels are poor, placing him in a vulnerable situation in the community. He was expelled from Walgett Community College in 2008 and has no subsequent schooling. In 2007 there were 81 unexplained absences in semester 2 out of approximately 100 days. There is a record of suspensions and persistent disobedience and he expressed a real passion for fishing and rugby league.
The pre-sentence report documents a disclosure of a history of substance abuse including commencing drinking alcohol at the age of 13 and cannabis at 16. His substance abuse continued throughout his teenage years and up until the time of these offences. It is against this background of profound social and economic deprivation that I must assess his moral culpability and apportion weight to the various purposes of sentencing. It is against this background that I must sentence him for breaking into the Gourmet Food Takeaway Shop in Walgett on two occasions separated in time by one hour in the early hours of 11 December 2013 and stealing a quantity of soft drink.
The offender pleaded guilty in the Walgett Local Court to two counts of aggravated break enter and steal contrary to s 112(2) of the Crimes Act. Each offence carries a maximum sentence of 20 years with a standard non-parole period of five years. Those two legislative guide posts indicate that offences of this type are normally considered as very serious criminal conduct requiring significant weight to be given to general and specific deterrence.
For the reasons set out below I am satisfied that the offences committed by this offender are at the very low range of objective seriousness. I am also not satisfied for the reasons set out below that having considered all possible alternatives that no penalty other than imprisonment is appropriate.
At the time of the offences the offender was aged 18. At about 12.40am on 11 December 2013 this offender together with his cousin Brandon Sharpley broke into the Gourmet Food Takeaway Shop in Walgett by kicking the door of the storage room. They took a carton of 24 cans of Lift soft drink valued at $18. Their attendance on that occasion was captured by CCTV.
About an hour later at 1.40am the two offenders returned with juveniles MH and JT. This offender was carrying a torch. He opened the door to the storeroom and entered together with the three co-offenders. None of the males had their faces covered. They were in the storage room for about five minutes. They left, each taking a carton of Powerade drinks valued at about $40 each.
Upon discovering the damage to the door and the stock missing the police were called. Police attended on 12 December 2013 and watched the CCTV footage. They identified this offender and suspected that the second offender to be Brandon Sharpley. A search warrant was executed at the offender's home. They found clothing consistent with that worn by him and seen on the CCTV footage. The police also found a Powerade box. A dog depicted in the CCTV footage at the time of the first break enter and steal was at the offender's home.
On 18 December 2013 the offender attended the police station at Walgett. He participated in a record of interview. He nominated MH and JT as the persons involved in the second offence and he confirmed the police suspicions with respect to the involvement of Brandon Sharpley. He declined to make a statement implicating his co-offenders and indicated that he would not give evidence against them. However he did provide some assistance to the police by way of identifying the two juvenile co-offenders and confirming the identity of the adult co-offender.
The offender has given evidence before me acknowledging his role in the offences. He gave evidence which I accept that on the day in question he had commenced drinking at 10am. He was drinking Bundaberg rum which he mixed with Coca Cola. He was well affected by alcohol at the time of the commission of the offences.
Objective Seriousness
I have had regard to the guideline judgment in R v Ponfield & Ors (1999) 48 NSWLR 327. Although the Court declined to specify a sentencing range, it considered the seriousness of the offence of break enter and steal offences, contrary to s 112(1) of the Crimes Act and identified a number of factors that if present, enhanced the objective seriousness of such an offence. Those factors also apply to offences contrary to s 112(2).
The offender was on conditional liberty at the time of the commission of the subject offences. I accept that that fact is an aggravating factor pursuant to s 21A(2)(j) of the Crimes (Sentencing Procedure) Act. I will return to that subject in due course.
Other factors identified in the guideline judgment are not relevant to the present case. In this case I find that there was no planning or organisation that went beyond that inherent in the commission of each offence. Although there was a period of about an hour between the first offence and the second offence where the offender returned home and decided to go back to the shop to take further soft drink, I am not satisfied that there was anything particularly planned or organised about that conduct such as to aggravate the object seriousness of the offence.
Whilst the offender has a criminal history he does not have matters of like offences. The offences were not accompanied by vandalism or any significant damage to property. There is not a multiplicity of offences that would require a more severe penalty than otherwise appropriate and the value of the stolen property is not significant.
I find that the objective seriousness of the first offence is at the very lowest end of the range of objective seriousness particularly considering the range of offending behaviour contemplated by this offence. The Crown conceded it was at the low end of objective seriousness. I also find that the second offence is at the lower end of the range of objective seriousness.
With respect to the second offence I am satisfied that there was some limited deliberation on the part of this offender in making the decision to go back to the same shop and take further property. To that extent the second offence is slightly more objectively serious. However, I have also taken into account the fact that both offences were committed within a relatively short period of time and with respect to the second offence there was no planning or sophisticated organisation involved. Whatever deliberation was involved in deciding to go back to the shop was not well considered or sophisticated, having regard to his level of intoxication.
I note that on the second occasion the offender attended the premises in company of two juveniles. He was the adult and inferentially more mature than the two juvenile co-offenders. However he was relatively quite young himself. I am not satisfied that he enlisted their assistance or applied pressure upon them to become involved. I accept his evidence that the two juveniles "just came along" and he did not feel that he could do anything to stop them.
During the course of submissions the Crown provided the Court with a copy of the decision in R v Clifford [2008] NSWCCA 190. It was a successful Crown appeal against a manifest inadequacy of sentence. However that case is very different from the objective and subjective factors involved here. In Clifford the offender was dealt with in respect of three offences contrary to s 112(1), s 113(1) and s 154AA(1) of the Crimes Act.
In dealing with him, the sentencing judge took into account 14 break enter and steal offences on a Form 1. The respondent in that case had a prior record of like offences and had been dealt with by way of terms of full-time imprisonment in the past. His criminal history was described as "reasonably lengthy". The offender in that case was aged 46 years old at the time of the sentence and the primary motivation for the commission of the offences was to find cash to replace money he had used to buy cannabis.
A number of factors identified in Ponfield were present including professional planning, organisation and execution and the total amount of property stolen in that case ran into the thousands of dollars. That decision is of little assistance to the present sentencing exercise. The present case is not one where a large number of factors of aggravation are present or where the accumulative effect of those factors enhances the seriousness of the primary offences.
In the present case, as conceded by the Crown there is one aggravating factor being the offender was on conditional liberty. The offender was on a bond imposed at the Walgett Children's Court pursuant to s 33(1)(b) for a period of 18 months. At the time of the commission of these offences he was about six weeks shy of completing that bond. The offence for which he received the Children's Court bond involved an assault upon his father. The offender was 17 years old when his father who had been drinking alcohol all day returned to the home and continued to drink with friends.
The victim started harassing his son and the latter unable to control his emotions struck his father with a pole once to the side of the body. When spoken to by police, the offender said that his father was heavily intoxicated and was harassing him for money and was "swearing and tormenting me".
Although the offender was on a bond at the time of these offences, it was not for a matter of a like kind. It was a serious assault upon his father but I accept that it was in the context of his father being well affected by alcohol and harassing or tormenting the offender.
Mr Trindall has given evidence before me that the offender's father, whilst a decent man when not drinking becomes aggressive and argumentative when drunk. He gave evidence that alcohol brings out the worst in the offender's father.
Accordingly I am satisfied that the fact that the offender was on a bond at the time does not greatly aggravate the offences for which he is being sentenced. Each offence carries a standard non-parole period of five years imprisonment. The High Court in Muldrock v The Queen [2011] HCA 39 stated that the standard non-parole period is only one aspect of the larger task of sentencing. It should not be the starting point or the end point in arriving at a sentence. Indeed I am required to identify all the factors that are relevant to sentencing. In doing so I have had regard to the two legislative guideposts, the maximum sentence and the standard non-parole period.
The High Court also affirmed that the broad-ranging and flexible enquiry envisaged by s 21A and confirmed in Markarian v R [2006] HCA 25 was not subject to a procedural straight jacket in respect of particular offences by the introduction of the standard non-parole period provisions.
Fernando and Bugmy Principles
The evidence relating the offender's community and his subjective circumstances within it have been summarised above. No issue is taken by the Crown that the principles enunciated in Fernando and Bugmy apply in this case. It is appropriate that I set out in summary form some of the relevant principles.
In R v Fernando (1992) 76 A Crim R 52, Justice Wood identified a number of principles relevant to the sentencing of Aboriginal offenders. They are well known principles and it is not necessary to set them out in full in this judgment. Essentially his Honour confirmed and explained principles pertaining to an offender's Aboriginality. In particular he held, "the relevance of Aboriginality is not necessarily to mitigate punishment but rather to explain or throw light on the particular offence and the circumstances of the offender".
Justice Wood held that where the circumstances of an offender include abuse of alcohol reflecting the socio-economic circumstances and environment in which an offender has grown up, there needed to be:
"a realistic recognition by the Court of the endemic presence of alcohol within Aboriginal communities and the grave social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them."
Justice Wood held that whilst primary Courts must not lose sight of the objective seriousness of an offence, full weight must be given to the competing public interest in rehabilitation of the offender and the avoidance of recidivism on his part.
This context of the individual is necessary in order for the Court to properly assess the moral culpability of the offender and the competing purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act. In the High Court decision of Bugmy v The Queen [2013] HCA, the High Court endorsed the Fernando principles and held:
"the propositions stated in Fernando are largely directed to the significance of the circumstances that the offender was intoxicated at the time of the commission of the offence."
As Justice Wood explained, drunkenness does not usually operate by way of excuse or to mitigate the offender's conduct. However, his Honour recognised that there are Aboriginal communities in which alcohol abuse and alcohol-related violence go hand in hand. His Honour considered that when an offender's abuse of alcohol is a reflection of the environment in which he or she was raised, it should be taken into account as a mitigating factor. To do so, he said, is:
"to acknowledge the endemic presence of alcohol in Aboriginal communities and the grave social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them reinforcing the resort to alcohol and compounding its worse effects."
The High Court, in Bugmy, also noted:
"Of course, not all Aboriginal offenders come from backgrounds characterised by the abuse of alcohol and alcohol-fuelled violence. However Wood J was right to recognise both of those problems are endemic in some Aboriginal communities and the reasons which tend to perpetual them. The circumstances in which an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way."
In any case where it is sought to rely on the offender's background of deprivation in mitigation of sentence, it is necessary to point to the material tending to establish that background. In the present case that background has been established by evidence as summarised above. I repeat, the Crown does not dispute that the evidence establishes a background of profound deprivation in this case. Prolonged and widespread social disadvantage has produced a community so demoralised and alienated that many within it, like this offender have succumbed to alcohol abuse, criminal misbehaviour and a sense of hopelessness.
Recognising the history of profound deprivation and giving it weight as a mitigating factor is not intended to suggest that the Court is acting upon a kind of racial stereotyping which diminishes the dignity of individual offenders by consigning them by reason of their race and place of residence to a category of persons who are less capable than others of decent behaviour.
Instead it is relevant to the consideration of the relationship of these background matters to the assessment of the particular offender's moral culpability and proper consideration of the principles of proportionality and equal justice.
Justice Simpson explained the relevance of a difficult upbringing in the decision of R v Millwood [2012] NSWCCA 2. At para 69 she stated:
"I am not prepared to accept that an offender who has the start in life that the respondent had is equal in moral responsibility with one who has, what might be termed a normal or advantage upbringing. Common sense and common humanity dictate that such a person will have few emotional resources to guide his or her behavioural decisions. I should not be taken as implying that such a person bears no moral responsibility but I consider that the DPP's submissions significantly underestimates the impact of a dysfunctional childhood. Indeed it sits uneasily with the immediately preceding acknowledgment that his upbringing had been tragic and dysfunctional.
That his background is a relevant consideration affording some, although limited mitigation, is entirely consistent with the approach taken by Wood J in Fernando, a decision which has repeatedly been followed in this Court. If that were not so, there would be no purpose in sentencing Courts receiving as they invariably do, evidence concerning the personal background of offenders."
The High Court in Munda v Western Australia [2013] HCA 38 considered the Fernando principles in the context of an offence of manslaughter where the offender had killed his partner. The High Court in that case emphasised the role of the criminal law to vindicate the dignity of each victim of violence, to express the community's disapproval of that offending and to afford such protections as can be afforded by the State to the vulnerable against repetition of violence.
In the course of that decision [in paras 51 to 59] the plurality referred to the Victorian decision of Fuller-Cus v The Queen (2002) 6 VR 496 where it was observed that in the application of the principles stated by Brennan J in Neal (1982) 149 CLR 305, regard to an offender's Aboriginality serves to ensure that a factor relevant to sentencing which arises from the offender's Aboriginality is not overlooked by simplistic assumption that equal treatment of offenders means the differences in their individual circumstances related to their race should be ignored.
Moreover the personal disadvantages affecting an individual offender may be because of the circumstances in which they were engendered so deep and so broad that they served to shed light on matters such as, for example, the offender's recidivism. In Bugmy the plurality held:
"The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Amongst other things a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's makeup and remains relevant to the determination of the appropriate sentence notwithstanding that the person has a long history of offending.
Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving full weight to an offender's deprived background in every sentencing decision.
However, this is not to suggest that an offender's deprived background has the same mitigatory relevance for all purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult.
An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated, such that the offender's moral culpability or the inability to control that impulse may be substantially reduced.
However the inability to control the violent response to frustration may increase the importance of protecting the community from the offender."
I am satisfied that the history of socioeconomic deprivation in the community from which the offender comes and the impact that that has had upon him reduces his moral culpability. Notwithstanding the fact that these are not offences of violence, the offender's deprived background and his exposure over the years to violence and alcohol abuse is relevant to his capacity to mature and his capacity to appreciate the wrongfulness and consequences of his behaviour.
I am also satisfied that the offender's intoxication is relevant in the way referred to by Justice Wood in Fernando and adopted by the majority in Bugmy at para 38. Whilst this case does not involve offences of violence I am satisfied that the offender's intoxication is a relevant matter in assessing his moral culpability and is reflecting the heightened need for rehabilitation of the offender.
He has grown up with alcohol abuse being, not only a normal part of his home life, but also a devastating and entrenched problem in his peer group and community. He is a young man who committed these offences whilst well affected by alcohol, having commenced drinking on the day in question at 10am. The offender's history of socio-economic deprivation is also relevant to consideration of the countervailing purposes of sentencing.
The interplay of considerations relevant to sentencing may be complex and can be contradictory. In a given case, facts which point in one direction in relation to one consideration to be taken into account, may point in entirely different direction in relation to some other consideration. The social deprivation in the offender's youth, background and community is integrally related to his history of offending and considerations of questions of deterrence, rehabilitation and the protection of the community.
In another decision of Fernando [2002] NSWCCA 28, Chief Justice Spigelman, as he then was, said:
"It is, however, often the case that such considerations of deterrence are properly tempered by considerations of compassion which arise when the Court is presented with information about the personal life circumstances which have led an individual into a life of crime."
Additional to compassion the offender's background of deprivation may moderate the weight to be given to general and specific deterrence. The majority in Bugmy stated at 46:
"An issue for determination on the remitter is whether the appellant's background of profound childhood deprivation allowed the weight that would ordinarily be given to personal and general deterrence to be moderated in favour of other purposes of punishment including rehabilitation."
Having regard to the evidence in this case with respect to the offender's background and the profound disadvantage that exists in his community, I am satisfied that general deterrence should be given less weight than would ordinarily apply in cases involving aggravated break enter and steal.
The High Court has affirmed the existence of a wide arc of sentencing discretion requiring instinctive synthesis of all relevant factors. I must take into account a wide variety of matters that include the seriousness of the offences, the personal history and circumstances of the offender. As already noted there are competing and contradictory considerations in sentencing offenders.
In the present case I am satisfied that significant weight should be given to the purpose of rehabilitation. In making this finding I do not give disproportionate weight to the offender's subjective circumstances. Instead I have had regard to the objective seriousness of the offences which I have determined to be at the lower end of the range, the absence of multiplicity of aggravating factors, the reduced moral culpability of the offender by reason of his profoundly deprived background and his relative youth.
The offender was 18 years old when he committed the offences and is now 19. Although an adult, he is, relatively speaking, a very young man. His relative youth combined with his socio-economic deprivation points in my view to an emotional immaturity and a less than fully developed capacity to control impulse behaviour.
In the case of BP v R [2010] NSWCCA 159 at [5], Hodgson JA observed that emotional maturity and impulse-control develop progressively during adolescents and early adulthood and may not be fully developed until the early to mid 20s. Youth may be a material factor in sentencing even a 19 year old for the most serious offence.
The offender pleaded guilty at the first opportunity and is entitled to a 25% reduction for the utilitarian value of his plea. In addition to the plea of guilty I am satisfied that he is remorseful. He has given evidence before me and I accept that he is sorry for committing these offences. During his evidence he said that he hated stealing and explained that because he had a deep interest in working on properties he understood that the owners of those properties took a very dim view of thieves. His remorse is also evidenced by his willingness to make frank admissions when spoken to by the police, not only with respect to his own offending behaviour but in assisting the police by either identifying or confirming the identify of co-offenders.
He declined to make a statement or give evidence against his co-offenders. However, his assistance in the way I have described is further evidence of his contrition and I will take it into account as a mitigating factor. I also take into account the fact that the offences were not part of a planned or organised criminal activity, that the injury, emotional harm, loss or damage caused by the offences was not substantial.
During his evidence the offender described the joy and fulfilment he has experienced in the past five months since moving on to the Walma property, some 15 kilometres from Walgett. His uncle, Christopher Thompson also resides and works on the property. The offender has been residing and working on the property for the past five months. He comes into town rarely and for only brief periods. He no longer drinks in town and whilst he continues to drink alcohol on the property he is not in the company of his peer group with the adverse influence that that group had upon him.
He has been on a curfew since about 18 December 2013 requiring him to be at Walma during the hours of 9pm to 6am. Whilst the bail conditions have not been so onerous as to constitute a period of quasi custody, the fact that he has been on curfew for a period of some nine months without bail being revoked is a matter that further demonstrates his determination to rehabilitate.
I accept that he is at the cross roads. Furthermore I accept that he is genuine in his attempts to remain on the property, engaging in work that has provided him with a sense of fulfilment and hope for the future in circumstances where such opportunity is nowhere near plentiful. His work on the property includes fencing, irrigating, stick picking and mustering cattle. The offender states that his employer has been a good influence on him and wants him to continue there. Garry Trindall gave evidence that the offender is "a good kid" if he has the right guidance and remains working on the property. Mr Trindall added that the offender could be a good role model to other children.
I am satisfied that the offender genuinely intends to continue living and working on the property and that he has developed an insight into the causes of his offending behaviour and the path down which such behaviour leads. I am of the view that he would benefit from a period of supervision particularly with respect to education about substance abuse. I find that he has good prospects of rehabilitation.
Rehabilitation is a concept which is important in this sentencing exercise. In the case of Blackman v Waters [2001] NSWCCA 121 the Court of Criminal Appeal dismissed a Crown appeal against the suspension of the sentence for a serious armed robbery and the Court cited with approval Chief Justice King's remarks in Yardley v Bates (1979) 22 SASR 108 (at [44]):
"The protection of the community is also contributed to by successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of and it assumes particular importance in the case of first offenders and others who have not developed settled criminal habits.
If a sentence had the effect of turning an offender towards a criminal way of life, the protection of the community is to that extent impaired. If the sentence induces or assists in order to avoid offending in the future, the protection of the community is to that extent enhanced.
To say that the criminal law exists for the protection of the community is not to say that severity is to be regarded as the sentencing norm."
In Latouf (NSWCCA 12/12/1996) Mahoney ACJ said:
"It is in my opinion necessary that the law allow the sentencing judge discretion to determine the sentence appropriate for a particular offence for the particular offender and for the circumstances of the particular case.
General principles must, of their nature, be adjusted to the individual case if justice is to be achieved. Paramount amongst these is the achievement of justice in the individual case. To see the sentencing process as involving no more than stern punishment for each offender is not merely simplistic, it damages the public interest.
The sentencing process which is seen by the public merely as draconian and not just will lose the support of those whom it is designed to protect. If sentencing process does not achieve justice, it should be put aside. If justice is not individual, it is nothing but in addition a sentencing process must be capable of discriminating between cases.
There is, as I have said, a public interest in punishment but if the desire to punish results in a person who would otherwise not become a confirmed criminal becoming such, that sentencing process is inconsistent with the public interest. It is to be recognised that imprisonment may convert a person who will not be a persistent criminal into one who is."
It is clear that the protection and advancement of the community is met by the successful rehabilitation of this offender in these circumstances, not only in discouraging him from further criminal activity but in enabling him to be a positive influence to his peers which he has the potential to be.
On behalf of the Crown it was submitted that, particularly with respect to the second offence of aggravated break enter and steal, that no penalty other than a term of imprisonment is appropriate although the manner in which that term of imprisonment is to be served was a matter that was open in the circumstances of this case.
Although the offences carry a maximum sentence of 20 years and a standard non-parole period of five years these legislative guide posts are only two factors of a complex set of considerations to which I must have regard in arriving at appropriate sentences, a task that necessarily involves a process of instinctive synthesis.
Section 5 of the Crimes (Sentencing Procedure) Act mandates imprisonment as a last resort. I am not satisfied that in the circumstances of this case no penalty other than a term of imprisonment is appropriate. I have so determined for the following reasons.
(1) The objective seriousness of both offences is at the low range for the reasons set out above;
(2) The offender's background of profound social deprivation operates to reduce his moral culpability and to moderate the weight that is to be given to general deterrence;
(3) In light of the offender's genuine remorse, his good prospects of rehabilitation and the absence of re-offending whilst on conditional bail, the weight to be given to specific deterrence is also reduced;
(4) In light of the offender's youth, the fact that this is the first time that he appears as an adult before the Court and the evidence he has given before me which I accept, I am satisfied that the purpose of rehabilitation should be given significant weight in this case; and
(5) The offender pleaded guilty at the first opportunity. He also assisted the police by identifying his co-offenders and confirming of the identity of a third co-offender.
During the course of proceedings both parties have submitted that I should deal with the breach of the Children's Court bond. Mr Lawrence submitted that I had jurisdiction to deal with the breach pursuant to s 98 of the Crimes (Sentencing Procedure) Act 1999. Section 98(1)(c) states:
"If it suspects that an offender may have failed to comply with any of the conditions of a good behaviour bond, with the offender's consent any other Court of superior jurisdiction can deal with the breach."
He drew my attention to s 3 of the Act with respect to the definition of "Court" which excludes the Children's Court from that definition. He argued, however that s 94 of the Crimes (Sentencing Procedure) Act could be read as applying in the current circumstances where the Court is considering imposing a good behaviour bond. Furthermore he submitted that the offender consents to the Court dealing with the breach.
I have given this matter a great deal of thought. I am not satisfied that I have jurisdiction to deal with the breach of the bond imposed pursuant to s 33(1)(b) of the Children's (Criminal Procedure) Act. I read s 98 as referring to a breach of a bond imposed in a Court other than the Children's Court. I have also had regard to pt 3 of the Children's (Criminal Procedure) Act and in particular s 41 which as I read it does not give the District Court jurisdiction to deal with a breach of a bond imposed by the Children's Court.
Had I determined that I had jurisdiction I would have ordered that no action be taken for the breach.
Accordingly with respect to each of the offences that are before me the offender is convicted. On the first charge of aggravated break enter and steal pursuant to s 9 of the Crimes (Sentencing Procedure) Act the offender is sentenced to a good behaviour bond for a period of two years commencing today, 12 September 2014 and subject to the following conditions: to be of good behaviour; to appear before the Court if called upon to do so at any time in respect of the bond; to be subject to whatever supervision is deemed necessary by Community Corrections; and to report to the Coonamble office of Community Corrections within seven days.
On the second charge of aggravated break enter and steal pursuant to s 86 of Crimes (Sentencing Procedure) Act the offender is ordered to perform a total 100 hours of community service work and the offender is to report to the Coonamble office of Community Corrections within seven days to enable the administration of the order to commence.
I think they are all the orders required.
DAY: Thank you your Honour. Your Honour if I could just place on the record one thing. When Mr Brandon Sharpley eventually comes before your Honour I would just like to put it on the record that my written submissions were prepared before your Honour gave the judgment.
HER HONOUR: Why is that Mr Day?
DAY: Because there were substantial portions of your judgment your Honour that are, in fact, in my submissions so I just wanted to point that out that I didn't fashion my submissions on the basis of your Honour's judgment.
HER HONOUR: You're not plagiarising then.
DAY: That's correct your Honour. I just put that on the record.
HER HONOUR: Well perhaps I should make an order that my remarks or a transcript of my remarks should be obtained and placed on the file.
DAY: Thank you.
MCIVOR: Yes your Honour and also for prudent caution just note that a - or a suitability assessment for community service was obtained as a second report and that report I believe is before the Court as suitable.
HER HONOUR: You're quite right Ms McIvor and I think I have neglected to formally mark that report.
MCIVOR: Yes your Honour.
HER HONOUR: Thank you for reminding me of that. Yes I should place on the record that an assessment for a community service placement was suitable and it was contained in a report that was placed before me and which I will have marked as exhibit B in the proceedings. Thank you for that.
EXHIBIT #B REPORT TENDERED, ADMITTED WITHOUT OBJECTION
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Amendments
20 October 2014 - typographical error
Amended paragraphs: 11
Decision last updated: 20 October 2014
13
3