R v Cornwall

[2012] NSWDC 183

District Court

New South Wales

Medium Neutral Citation:	R v Cornwall [2012] NSWDC 183
Hearing dates:	15 June 2012
Decision date:	15 June 2012
Before:	Berman SC DCJ
Decision:	The offender is referred for assessment as to his suitability to serve his sentence by way of an Intensive Correction Order
Catchwords:	CRIMINAL LAW - Sentence - Aggravated break, enter and commit serious indictable offence - In company
Category:	Sentence
Parties:	The Crown David Henry Cornwall
Representation:	Mr J Booth - Offender Director of Public Prosecutions Legal Aid Commission - Offender
File Number(s):	2011/34947; 2011/47854

SENTENCE

1. HIS HONOUR: I trust that Mr Cornwell will not mind if I describe him as an unusual offender. I will explain why in a little while but the nature of his personality and the nature of his offending are quite unusual.

1. He appears for sentence today after having pleaded guilty at an early stage to three offences. Two are offences of aggravated break, enter and commit serious indictable offence, namely to steal and the third is an unaggravated form of that offence. The circumstance of aggravation relied on by the Crown is that the offender was in company.

1. The aggravated offences have maximum penalties of 20 years imprisonment and standard non parole periods of five years. The unaggravated form of the offence has a maximum penalty of 14 years.

1. I have taken into account of course the maximum penalties and the standard non parole periods where appropriate in formulating the appropriate sentences to impose upon Mr Cornwell. My reasons for not imposing the standard non parole period are to be found in these remarks on sentence.

1. When Mr Cornwell was about 18 and three-quarters, he commenced a series of offences in which he targeted schools and, in particular, computer and other electronic equipment within those schools. At around midnight on 20 January 2011 he and a co-offender, who was under 18 at the time and so I will not name him, attended the Weston Primary School. They jumped over the security fence and went to the fairly recently constructed IT room. That was an important aspect of the school. It was built following Federal Government grants and was intended to be an important development for both students and staff. It was hoped also that it would benefit the wider community. The school is in an area of substantial disadvantage where there are families who have been unemployed for generations. The principal of the school, Mr Withers, gave evidence today about how important this new IT room and the equipment within it was.

1. The offender and his co-offender took the rubber seal from a window, removed a sheet of glass and went into the classroom. They removed a large, flat screen television and parts of some computers which they then took to Mr Cornwell's home. They left unlocked one of the windows. It was through that means that the offender went back to the same school on 24 January, went through the unlocked window and took two hard drives from computers.

1. A few days later on 28 January the offender and his co-offender targeted a different school, Kurri Kurri Public School. He was an ex student of both schools. They took with them this time another relatively young person who was over the age of 18 and thus who I can name, Amy Foster. She was to drive the getaway vehicle.

1. The offender and his young co-offender broke into the school and began looking for items of value. They found some Coca Cola and had a drink, took some green environmental bags and got some keys, intending to use them to gain access to various rooms throughout the school. Before they could take much else, however, they were detected. They were eventually arrested by police who had been called by security, who noticed what was going on.

1. The offender, Mr Cornwell, made admissions about what he had just done and, when police later searched his home and found property relating to the Weston Public School offences, he made admissions to those offences as well and directed police to where the stolen property was hidden.

1. Although Mr Booth did not rely on the principle of parity, I will note that the young offender received 100 hours community service and so did Ms Foster. Given Ms Foster's involvement in a single offence, Mr Booth was right not to rely on the principle of parity. Similar comments can be made about the sentencing of the juvenile offender.

1. The offender appeared in court today. Neither of his parents was able to be here. His father is unwell and his mother had commitments with children. His parents separated when the offender was quite young. He remained with his father but has spent times living with his mother and sister. He left school in year 11 and although he has done some work and is currently doing voluntary work he spent some time on unemployment benefits. At the time of these offences he says that he had no money. The offender's offending was quite targeted for reasons he explained in evidence. He needed, for example, two hard drives. He did not just take everything that he could find but took only what he needed. His offending was quite focused in that way. He wanted some computer equipment and he was prepared to commit serious offences to get it.

1. The offender is now working in an op shop on a voluntary basis. That only recently started but the offender enjoys it.

1. I mentioned before and again I trust Mr Cornwell will forgive me for saying this, that Mr Cornwell acts somewhat unusually. He was diagnosed with Tourette's syndrome in 2003, although he describes symptoms of that syndrome from a much earlier age. Other possible diagnoses have been given, Asperger's Syndrome has been mentioned or high functioning autism without cognitive impairment. I have watched him in the witness box as he gave evidence. He is now 20 years of age and his behaviour was such that I have got no doubt that he would be quite vulnerable in prison. Prisons are terrible places. Any sign of weakness is seen as an opportunity by bored and usually violent prisoners for those prisoners to entertain themselves. I have got no doubt that the offender's time in custody would be considerably harder than that served by most other prisoners.

1. He has in fact spent some time in custody, not in relation to these offences but in relation to other offences which he committed whilst on bail for these offences. The facts of those offences were put before, me appropriately, as an indication as to the offender's prospects for rehabilitation. They do suggest that, despite reaching the age of almost 19 without committing any further offences, Mr Cornwell was starting on a career which involved regular offending but he did spend 53 days in custody, bail refused, on these subsequent matters. He does not get any credit for pre-sentence custody from me, because no doubt that period was taken into account by the magistrate who dealt with the subsequent offences, in reaching the decision not to impose a sentence of full time custody upon him for very serious offences.

1. But what is much more relevant is the experience that Mr Cornwell had whilst in custody. It seems that the victim of his subsequent offences was a prison offender. For that reason, and I have got no doubt also because of his behaviour and age, he spent his time in custody on protection. Despite that, he was subject to threats and spent his 53 days in custody in a very unpleasant manner. Because he was on protection, it was assumed by other prisoners that he was a paedophile. He of course is not serving any sentence for anything relating to paedophilia or child sexual assault, but such subtleties were not appreciated by other prisoners.

1. I am not the first person to note that prisoners have an unusual sense of morality but one thing is clear, prisoners regard paedophiles as the lowest of the low and are prepared to inflict violence upon them simply for what they are. I repeat, the offender is not in that category but he was assumed to be by other prisoners. The experience of having spent those 53 days in custody has been a salutary lesson for the offender. I have also got no doubt that, were he to return to full time custody, he would most likely serve any sentence on protection and most likely the things that he experienced while he was bail refused would recur.

1. The offender expressed his remorse. It is quite beneficial that Mr Withers, the Principal of Weston Public School, was able to tell me and also the offender of the harm that his offending caused. I am sure that at the time the offender committed these offences he had not thought about the consequences for the school, that is the staff, the students and even the wider community, about what he was doing. That harm was substantial, although not everything was taken. The room could not be used for a number of months and it was six or seven months until the IT room was back up and running as it had been before.

1. The offender described his behaviour as abhorrent. I accept that he is remorseful. Often when offenders are asked by their counsel whether they intend to commit any offences in the future, they confidently say that they will not. Mr Cornwell did not. He has a realistic attitude to what he was thinking about when he committed these offences and the chances of him ever feeling that way in the future. He hopes that he will not commit further offences but - and this is a demonstration of how honest he seemed to be in the witness box - he did not say that he could guarantee that he would not.

1. The actual ultimate sentence to be imposed upon Mr Cornwell is quite difficult to work out. It is clear, given the objective gravity of what he did, that a sentence of imprisonment is required. It is clear that I am not able to determine the length of the sentence of imprisonment to be imposed with a view to how I would like those sentences to be served and it is clear that the objective gravity of what the offender did was high indeed. But it is equally clear that the experience of having spent some time in custody has had a significant impact on the offender and thus his prospects for rehabilitation. It is also equally clear, as I have attempted to demonstrate perhaps ad nauseam, Mr Cornwell's time in custody would be very difficult indeed.

1. Mr Booth, assuming of course that the sentences would be two years or less, began by suggesting that suspended sentences of imprisonment would be appropriate. Even assuming that I will get to two years or less, I do not consider that a suspended sentence is appropriate. The offender needs to be personally deterred from further offending. He should not at all get the idea that, because of the factors that I have described regarding him, he can commit further offences without being effectively punished. A suspended sentence of imprisonment is, in the circumstances of this case, insufficient punishment.

1. As a fallback position, Mr Booth asked me to consider the imposition of an intensive corrections order. The Crown did not speak in opposition to that outcome. Ordinarily these three separate offences would require significant periods of imprisonment and significant levels of partial accumulation. Given the outcome I have in mind it is not necessary for me at this stage to indicate the precise manner in which sentences will be calculated but I have reached the conclusion that the offender would be sentenced to imprisonment for two years or less and I have also reached the conclusion that it is appropriate that he be referred for assessment as to his suitability to serve his sentence by means of an intensive corrections order. I therefore continue the offender's bail.

1. The offender is referred for assessment as to his suitability to serve that sentence by way of an ICO. I will order a transcript of those remarks I have just delivered. I do not think it is necessary to order a transcript of the evidence.

1. I will dismiss the matter on the 166 certificate at the request of the Crown.

1. Mr Cornwell just let me speak to you. You haven't been sentenced to go back to gaol yet. You are not out of the woods though. If the Corrective Services say you are not suitable for one of these intensive corrections orders I have got little alternative so you want to make sure you do everything that they require so that you get a favourable report. I will speak to you about this later anyway if you do get a favourable report. It is not an easy sentence. It is not like a suspended sentence where you have just got to be of good behaviour. You will be on a curfew, you will be subject to regular attendance by Probation and Parole. You have to do voluntary work. There are so many things that you will have to do so it is not an easy option by any means and I will remind you of this if you are suitable on 24 August. But I don't want you to think that you have escaped gaol yet. A lot depends on what happens on 24 August and even if you are suitable on that occasion a lot will depend on how you go during the period of the Intensive Corrections Order. If you don't do well you'll be back in gaol understand.

1. OFFENDER: Yes.

**********

Decision last updated: 09 October 2012