R v Clissold

[2014] NSWDC 271

District Court

New South Wales

Medium Neutral Citation:	R v Clissold [2014] NSWDC 271
Hearing dates:	29 July 2014
Decision date:	30 July 2014
Jurisdiction:	Criminal
Before:	Cogswell SC DCJ
Decision:	(1) The offender is convicted of all offences. (2) An aggregate sentence of 3 years and 4 months is imposed under s 53A Crimes (Sentencing Procedure) Act 1999 an aggregate sentence of 3 years and 4 months is imposed. This is to commence on 5 June 2013 and to expire on 4 October 2016. One non-parole period of 1 year and 8 months for all the offences to which the sentence relates is fixed and is to date from 5June 2014 and to expire on 4 February 2015. (3) Two counts of disposing of stolen property and one count of possessing ammunition are taken into account pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999.
Catchwords:	CRIMINAL LAW - particular offences - larceny - receiving and disposing of stolen property - stolen caravan - stolen firearms - sentence - negligible criminal record - plea of guilty at earliest opportunity - discount of 25% - special circumstances for adjusting ratio between head sentence and non-parole period – generous adjustment - youth of offender - first time in custody - positive pre-sentence report - suitable for supervision upon release on parole - misdemeanour in custody - aggregate sentence imposed - limited application of the principle of parity
Legislation Cited:	Crimes Act 1900 (NSW), ss 117, 188(1) Crimes (Sentencing Procedure) Act 1999, ss 10, 32, 44(2)(a), 53A Firearms Act 1996 (NSW), s 7A(1)
Category:	Sentence
Parties:	Regina (Crown) Raymond Ian Clissold (offender)
Representation:	Counsel: S Healy (offender) Solicitors: A Kiru (Director of Public Prosecutions)
File Number(s):	2013/00173294

Judgment

HIS HONOUR: Mr Clissold, you have not been sentenced before, apart from being fined. Ms McGowan or Mr Healy might have explained to you, I give reasons for my sentence. So I am going to talk for about half an hour about the case and then I will announce my sentence at the end. Some judges announce it straightaway. I do not do that because I want you to listen to what I am saying, as well as the other people in court and I will announce the sentence at the end. Do you understand that?

OFFENDER: Yes.

HIS HONOUR: So that is what is going on. Judges always have to give reasons for sentences they impose, particularly if it is relatively serious.

1. Raymond Clissold is a man who is almost thirty and has a negligible criminal record. But over a period of a month or so in late 2012, he got himself involved in a theft as well as receiving and disposing of stolen property to a serious extent. He was charged with various offences and has pleaded guilty and it is my job this morning to sentence him for the offences that he has pleaded guilty to.

2. The first thing I should do is refer to the charges themselves. I am sentencing Mr Clissold for a larceny. That is a crime under s 117 of the Crimes Act 1900. Parliament has fixed a maximum of five years imprisonment to that offence. When I am sentencing him for that larceny offence, Mr Clissold has asked me to take into account three offences that he has pleaded guilty to, but which will not be recorded as convictions. I will take those into account under s 32 of the Crimes (Sentencing Procedure) Act 1999 and I sign the form to that effect. The three charges are disposing of some caravan towing mirrors and an LED lamp and possessing ammunition.

3. In addition, I am sentencing Mr Clissold for six offences of disposing of stolen property. They are all offences under s 188(1) of the Crimes Act. They are more serious than the larceny offence. Parliament has fixed a maximum of ten years imprisonment, to each of those offences. Each item that was disposed of was a firearm, either a rifle or a shotgun.

4. I am also sentencing Mr Clissold for receiving stolen property in the form of a gun safe and eight firearms and a GPS system. That is an offence again under s 188(1) of the Crimes Act carrying a maximum of ten years imprisonment.

5. Finally I am sentencing Mr Clissold for yet another offence of receiving stolen property. That property was a backpack and a mobile phone handset, motorbike helmets, jackets and gloves. Again, it carries a maximum of ten years imprisonment under s 188 of the Crimes Act.

6. As I said, Mr Clissold pleaded guilty to all of the offences. He did that on 18 October 2013. I therefore formally convict Raymond David Clissold of all of the offences which I have referred to.

7. It is important for a judge to set out a little detail about what happened to bring about the charges, so that the offender and others wanting to know about the offences can have a sense of how serious they are. It is also appropriate for a judge to make reference to personal factors which relate to an offender.

8. First I will say something briefly about the crimes themselves. I take the information from a document which is part of exhibit A, which is called agreed facts. Tony and Elaine North owned a caravan which they kept at Riverside Gardens Over Fifty-Fives Village, in North Richmond. It was stolen sometime between 27 November and 29 November 2012. They had bought it four years before for nearly forty-thousand dollars and it was insured for just over thirty-five thousand dollars. That theft is the larceny which Mr Clissold has pleaded guilty to.

9. In the early hours of 17 December 2012, two properties were broken into in Lugarno, both of them in Moons Avenue. From the property of Mr Matthew Mood, there was stolen a GPS, a gun safe and eight firearms which were in the gun safe. In the same street, a garage was broken into and the garage itself and a car in the garage were ransacked. From the garage was stolen a backpack, a mobile handset, some helmets, motorcycle jackets and gloves.

10. At the time, Raymond Clissold lived in North Parade Mount Druitt. Police turned up there with a search warrant on 19 December 2012, a couple of days after the thefts from Moons Avenue. They found the caravan there but did not realise at the time that it was the stolen caravan. Mr Clissold was there with another man named Robert Manning. He also lived at the address. Both men used to go into the caravan, according to the agreed facts. Police found various items at the place, including the Gladiator gun safe which had been broken open. They found the backpack and mobile phones and some GPSs, as well as the motorbike associated items. No firearms were found. Police did find a mobile phone which suggested that “the offender and Manning were seeking buyers for the firearms”.

11. Police searched again a couple of weeks later. They discovered that Mr Clissold had pawned the LED lamp and caravan mirrors at pawn shops about a month beforehand. In early January 2013, police found six of the eight firearms which had been stolen from one of the Lugarno houses, along with some ammunition. They found it at the house occupied by a man named Joshua King. Joshua King is the person with whom Mr Clissold and Mr Manning were communicating about selling firearms.

12. Mr Clissold was not arrested until some months later. It was 5 June 2013. He made limited admissions but they included that he had pawned the towing mirrors and the LED lamp at the end of November 2012. He denied knowing Joshua King. He denied being involved in the other offences. He told police that he owned certain of the items which were found.

13. I should add here that Joshua King pleaded guilty to certain offences and was sentenced by his Honour Judge M Williams SC on 19 December 2013. I will return to that sentence.

14. Robert Manning has pleaded not guilty to certain offences and will be tried here at the Parramatta District Court in September.

15. Mr Clissold’s record, as I said, is negligible. There is one item in respect of which the charge was dismissed under s 10 of the Crimes (Sentencing Procedure) Act 1999. I do not take that into account and for negligent driving and custody of a knife in a public place, over ten years ago, he received fines.

16. I should say something about Joshua King’s sentence, because some submissions were made on the question of parity. Joshua King had pleaded guilty at the earliest available opportunity and was given a twenty-five per cent discount on his sentence by his Honour. Of significance is that Joshua King had pleaded guilty to only six charges. Each of them was of possessing a firearm without a licence. That is an offence against s 7A(1) of the Firearms Act and each offence carries a maximum of five years. Mr King is about five years younger than Mr Clissold. However he had accumulated a worse criminal record, which included an offence of recklessly causing grievous bodily harm for which he received an Intensive Correction Order. He was called up for a breach of that. At the time that Joshua King committed the offences he was on conditional liberty. In addition, his Honour Judge Williams took into account a greater number of offences under s 32 of the Crimes (Sentencing Procedure) Act, than on Mr Clissold’s corresponding form. I have to be careful about the question of parity, because in fact the offences that Mr King was sentenced for are not the same. They are less serious offences than almost all of the offences that Mr Clissold is charged with. All of Mr Clissold’s crimes carry a maximum of ten years, except the larceny offence.

17. I turn now to matters which are personal to Mr Clissold himself. As I said, he is twenty-nine and has a negligible criminal record, which does not count at all against him. There is a helpful pre-sentence report, prepared by Community Corrections. It gives some information about his background and circumstances. He was reared by his grandparents, due to his mother’s drug abuse and associated periods in custody. He came to know his own father only when he was twenty, but now has a supportive relationship with him and his father is present in court and supporting him, as are his grandmother and his partner. His grandmother described him in positive terms and suggested that the “offences were uncharacteristic of him”. Sometimes judges are weary of such an assessment but in this case, that remark is borne out by his criminal record which contains next to nothing.

18. Mr Clissold has four children himself. They are aged two to ten and he has been in a relationship with the mother of his children “intermittently for the last eleven years”. Evidently Mr Clissold has a drug problem, because he told the officer who interviewed him that “his drug use” was the cause of instability in his relationship. He completed Year 10 and almost completed an apprenticeship as a panel beater. He has been generally in good employment, over the years, although inconsistent. Apparently he will have employment available to him when he is released. He admitted to the officer “problematic cannabis use” which he commenced at about 18 and a year or so before he went into custody, “he was abusing methylamphetamine, also known as ‘Ice’, which he also used on a daily basis.” He said significantly that “he has never engaged in intervention to address his substance abuse issues.”

19. The reporting officer thought that Mr Clissold’s acknowledgement of his offences “demonstrated some level of responsibility for his offending behaviour.” He said that he “intends to cut all ties with his antisocial peer group when he returns to the community.” The officer thought that he was “willing and motivated to address a longstanding history of drug abuse” with the support of his family. He is suitable for and would benefit from a period of supervision.

20. There is some contrition for his offences. That is exhibited by his plea of guilty. However, he was not called to give evidence and cross-examined so there was limited weight that I can put on it, but it is borne out by the fact that he has pleaded guilty. I also have to bear in mind that there were six months between January and June 2013 whilst the investigation was still going on. I also have to bear in mind that there is in his custody record - issued by the Corrective Services Department - of his movements since he has been in custody, an entry for a misdemeanour which involved failing a prescribed urine test in December last year. Mr Clissold frankly acknowledged to his counsel that it involved amphetamines. There is one only such item and Mr Clissold has been in custody for over a year.

21. Mr Clissold has very good family support and his pre-sentence report is encouraging and hopeful. I would regard his prospects of rehabilitation as fairly good. But for the incidents involving the urine, I would have regarded them as good but I hope that that was a one-off incident.

22. Mr Healy of counsel appeared for Mr Clissold in the sentence proceedings yesterday and Mr Kiru appeared for the Director of Public Prosecutions. Mr Healy acknowledged his family support and prospects of rehabilitation. I have already referred to those aspects. I agree with Mr Healy that his client needs direction and assistance when he is released from custody.

23. Mr Kiru fairly acknowledged that there may be special circumstances for adjusting the normal relationship between the full sentence and the non-parole period. Normally a prisoner must serve 75% of their sentence in fulltime custody but in special circumstances the judge can reduce that percentage. I think there are special circumstances for making that reduction in this case. They are that he has never had any intervention so far as his drug abuse is concerned; there is a positive pre-sentence report; he has good family support and, hopefully, employment.

24. Mr Kiru warned me about placing too much weight on the sentence which was given to Joshua King. I agree with Mr Kiru in that regard. I think that the principle of parity has limited application in this case. Mr Kiru proposed that there should be some partial accumulation in the sentences. Although Mr Healy argued that the culpability of the criminal behaviour, so far as Mr King and Mr Clissold were concerned as that behaviour related to the six weapons, is similar, I do not accept that submission because Parliament regards the crimes differently. Mr King pleaded guilty to possessing firearms without a licence. What Mr Clissold has pleaded guilty to is distributing, by way of supplying, firearms to another member of the community. Parliament regards that behaviour as very serious as is reflected in the ten-year maximum sentence which it has attached to that crime.

25. The sentence which I will impose will date from 5 June 2013 which is when Mr Clissold was arrested and went into custody.

26. In addition, Mr Kiru has acknowledged that the plea of guilty which Mr Clissold entered was at the earliest available opportunity so the sentence which I will impose will be discounted by 25% because of that fact.

27. What I also propose to do is to aggregate the sentences which I would impose. I am able to do that under s 53A of the Crimes (Sentencing Procedure) Act. I am sentencing Mr Clissold for nine offences and what I am allowed to do is to impose one aggregate sentence in respect to all of them, and I propose to do that but I must also indicate what the individual sentences would have been for each of the crimes. I will now proceed to do that.

28. I regard an appropriate sentence for the larceny offence as being one of two years’ imprisonment. It was an item of some significant value. Because Mr Clissold pleaded guilty, I would discount that sentence to 18 months imprisonment.

29. In respect of the six offences of disposing stolen property, being the firearms, I regard an appropriate sentence as being one of four years imprisonment. I take those offences seriously. It involved distributing lethal firearms within the community. Again, because Mr Clissold pleaded guilty at the earliest available opportunity I discount that sentence to three years’ imprisonment.

30. In respect of each of the offences of receiving stolen property, the first being the gun safe and the firearms and the GPS system, the second being the backpack and other items, I would regard appropriate sentences for each of those as one year and ten months. That is, 22 months for each of them. I would regard it as appropriate for the six offences of disposing of stolen property being the firearms, for those sentences to be concurrent. They were disposed of, so far as I know, all at the same time on one criminal occasion. So for each of them the sentence would have been three years and they would all run together.

31. I would also order that the sentences for the last two offences of 22 months each - one year and ten months - be concurrent. But I would regard it as appropriate to accumulate by two months the three years concurrent on top of the 18 months which I would have imposed for the larceny, and the 22 months pair of sentences on top of the three years. In other words, I would regard an appropriate overall sentence as being one of three years and four months and that takes into account the discount of 25% which I have already factored in.

32. As I said, for a sentence of three years and four months - which is 40 months - the non-parole period would be expected to be 30 months, two years and six months. However, because of the special circumstances which have been referred to, and I accept, I propose to discount that with some significance. I am going to fix it at 50% so that the amount of time that Mr Clissold will have to serve in custody will be one year and eight months before he is eligible for parole. That is a relatively generous adjustment. The reason I am doing so is because of his relatively young age; it is his first time in custody and also he has never undertaken some assistance for his drug problem. He has also very good family support.

33. I am going to sentence you now Mr Clissold, if you would stand up. I fix a non-parole period of one year and eight months to commence on 5 June 2013 and to expire on 4 February 2015. The balance of the term is one year and eight months commencing on 5 February 2015 and expiring on 4 October 2016.

HIS HONOUR: Have a seat for a moment and I’ll make sure I’ve got the mathematics right and then I’ll make sure you understand when it starts, when you’ll get your parole and when it ends. But let’s just make sure my sums are right. So one year and eight months non-parole period 05/06/13 to 04/02/15; balance of the term one year eight months 05/02/15 to 04/10/16. Take your time.

WILSON: Your Honour, my friend has just raised in relation to the receive stolen property offences, your Honour did not--

HIS HONOUR: Which ones?

MCGOWAN: 8 and 9.

WILSON: That would be 8 and 9 on the current sentence summary. Your Honour did not expressly indicate a discount, so your Honour did not apply a discount.

HIS HONOUR: You’re right, no thank you. She is quite right, thank you. I can see what I've done. The sentences that I would have imposed for the receiving stolen property being the gun safe firearms and GPS, and for the backpack would have been two and a half years each, that is 30 months. I discount those by 25% so that they are rounded off 22 months each.

MCGOWAN: Thank you, your Honour.

HIS HONOUR: It’s right in front of me but I forgot to read that. So just go back to your sums.

WILSON: Your Honour, just indicating my friend and I agree with your calculation.

HIS HONOUR: All right, that’s reassuring. Thank you. And I've just noticed that I should, under s 44(2)(a) of the Crime (Sentencing Procedure) Act, deal with aggregate sentence.

34. I fix the term of the sentence as three years and four months commencing 5 June 2013, expiring 4 October 2016 and I set one non-parole period for all of the offences to which the sentence relates, being one year and eight months commencing 5 June 2013, expiring 4 February 2015.

HIS HONOUR: That makes sense? Yes, getting nods. Okay.

35. Mr Clissold, your sentence is more than Mr Healy asked for. He thought maybe you should be released around about now - one year and two months -but I have given you more than that because of the reason that I gave: that your offending behaviour was worse than Jason King’s and you have got more offences and the sentences - the maximums - are higher. And you have been engaged in some dangerous activity with disposing of firearms, stolen firearms, that is why I have given you the sentences that I have for the reasons that I have explained.

35. The non-parole period that you get for 40 months is normally 30 months, so you would be in gaol for two and a half years. But instead I brought that down to one year and eight months, 20 months. You will be eligible for parole on 4 February 2015, that is the important date, 4 February 2015. I do not order your parole, the Parole Authority does that. You will need to apply for parole and they normally grant it if everything is going well like so far with that one incident being the exception.

36. After you are released on parole you have got another one year and eight months of your sentence to serve but you are in the community serving it. The Parole Authority will fix conditions for your parole and they will no doubt include supervision by the Probation and Parole people, assistance with your drug habit from beforehand and support with getting on with your life and things like.

Do you understand that?

OFFENDER: Yes.

HIS HONOUR: So the important date is 4 February 2015, next year when you are eligible for parole. Look, what you do now is up to you. I can see you've got your family there, you’re well supported and I've taken that into account. You’re a young man, you’re not 30 yet, I've said that. You’ve got a negligible criminal record and quite often I get in front of me people with pages of them. Mr King had a couple of pages in his record. You’re pretty much a cleanskin but you’ve now embarked on a series of serious offending behaviour, that’s why you’re in gaol because it’s serious stuff.

What you do when you get out is up to you and my advice is that you take advantage of what they offer you, get yourself off the drugs, get back to your family and allow yourself to be supported by your own family and by the Corrective Services people in the community. Do you understand that?

OFFENDER: Yes.

HIS HONOUR: All right. It’s over to you now, good luck. Ms McGowan, do you want a word with your client before he’s taken down? I’m happy to leave him in the dock for the time being.

MCGOWAN: I’ll see him downstairs. Thank you, your Honour.

DISCUSSION AS TO OFFENDER’S FAMILY BEING ALLOWED TO SEE HIM AT THE DOCK

MCGOWAN: Your Honour, my friend’s just got something to say.

WILSON: Your Honour, I’m also instructed to apply for the transcription of the remarks on sentence. This sentence, so they’re available for Mr Manning, maybe.

HIS HONOUR: Right. Because you’ll need them maybe for Mr Marshall. Yes.

38. I direct that a transcript of these remarks on sentence be taken out.

HIS HONOUR: Probably one at a time but I will leave it up to Correctives.

WILSON: And I confirm that the firearms are not to be destroyed as they are to be returned to their owners by the police.

HIS HONOUR: Okay, that’s fair enough. Yes that’s fine. I have not made any order about disposal of the firearms.

WILSON: Thank you, your Honour.

HIS HONOUR: Thanks Ms Wilson, thanks Ms McGowan.

**********

Decision last updated: 19 February 2015