R v Dawson

[2014] NSWDC 260

District Court

New South Wales

Medium Neutral Citation:	R v Dawson [2014] NSWDC 260
Decision date:	12 November 2014
Jurisdiction:	Criminal
Before:	Cogswell SC DCJ
Decision:	For the offence of break, enter and steal, I convict the offender and sentence him to three years' imprisonment to commence on 6 November 2014 and to expire on 5 November 2017. I fix a non-parole period of one year and 10 months. The non-parole period will commence on 6 November 2014 and will expire on 5 September 2016.
Catchwords:	CRIMINAL LAW – sentence - particular offence - aggravated break, enter and steal - on parole at time of committing offence - prior criminality - long criminal record - majority of adult life spent in custody - at risk of becoming institutionalised – plea of guilty at earliest opportunity – 25% discount - parity between co-offenders - principle of totality - early plea of guilty - rehabilitation program to commence in custody - strong family support – special circumstances for adjusting ratio between head sentence and non-parole period – need for lengthy period of supervision and support upon release on parole to break cycle of offending
Legislation Cited:	Crimes Act 1900 (NSW), s 112(2)
Category:	Sentence
Parties:	Regina (Crown) Glen Wayne Dawson (offender)
Representation:	Counsel: R Suters (offender) Solicitors: Director of Public Prosecutions NSW (Crown)
File Number(s):	2014/00039245

Judgment

1. Glen Wayne Dawson has a long criminal record. He is only 35 and, as graphically pointed out by Ms Suters who appears for him, since becoming an adult at the age of 13 he has spent only about 10 and a half months in the community at liberty. He has committed yet another offence and I am sentencing him for that today. Ms Suters has very helpfully focused her submissions on three aspects of the sentence.

2. First I should say briefly what happened to bring Mr Dawson before me. He was involved in a break, enter and steal. It was at a property at Laguna with two other men overnight on 7-8 January 2014. He broke into the house. They ransacked the house and stole three firearms from a safe. They stole some other items as well. They were returning the next morning to collect some of the larger items when the police were there. They were not quick enough to work out a consistent explanation as to where they were going so when the police searched later in the day, they found some of the stolen goods.

3. Mr Dawson was arrested a month later on 6 February 2014. He was charged with aggravated break, enter and steal. That is an offence against s 112(2) of the Crimes Act 1900. Parliament regards it as a very serious offence. One can tell that by the fact that Parliament has fixed a maximum of 20 years’ imprisonment to the crime. Not only that, Parliament has fixed a standard non-parole period of five years’ imprisonment to the same crime.

4. I formally convict Mr Dawson of that crime.

5. Ms Suters called her client to give evidence before me last week on 6 November. I must say, I was impressed by his evidence. He is employed in custody. He works in textiles and textiles despatch. In that section he works five days a week starting at 6 in the morning. He is a C1 classification which is minimum security with supervision. He is on protection. He has had gaol disciplines in the past in the long periods he has spent in gaol but this time he has none. He has a history of substance abuse, particularly heroin and the drug known as ice. This time in custody he has avoided contact with illegal drugs smuggled into gaol and is attending Narcotics Anonymous. Not only that, he is wanting to enrol in the Ngara Nura program which Ms Suters provided the information about in exhibit 2. It is a rehabilitation program which commences in custody.

6. Mr Dawson’s motivation is focused on his children. As I said, he is now 35. He has five children, the eldest is Ethan, a boy aged 11. He also has a son named Stevie aged 8, a daughter named Brock aged 7, a daughter Gypsy aged 3 and a baby Jack who is one or two. He maintains good relationships with the mothers of his children. He also gets support from his family. His mother, two brothers and a niece were present in court last week.

7. Mr Dawson acknowledges the assistance he needs when he is released from custody to remain drug free and proposes to move away from the Cessnock area where unhelpful associations exist. He acknowledged the stupidity of his criminal behaviour and apologised.

8. In cross-examining him, Mr Fitzhardinge elicited that the last time Mr Dawson had an offence of break, enter and steal was almost 20 years ago when he was under 18. Mr Dawson, when he committed this offence, was on parole for another offence. That is an aggravating factor which I need to take into account.

9. Ms Suters made three points. They were related to parity, the commencement date of the sentence and special circumstances for altering the usual relationship between a non-parole period and the balance of parole.

10. So far as parity is concerned, there were two co-offenders. Ms Suters fairly abandoned any comparison with one of them who was affected by mental health issues. However she pointed out that the sentence of three years and nine months to the co-offender Robertson had to be seen in the context that Mr Robertson had spent time in custody for break, enter and steal offences and indeed was on conditional liberty relating to one of those when he committed this. He has more break, enter and steal offences on his record, which increases the need for specific deterrence in Mr Robertson. I accept that submission.

11. So far as the commencement date is concerned, Mr Dawson is in fact serving another sentence for an unrelated crime. The non-parole period for that sentence expires on 5 June next year. I would be entitled to commence the sentence for the crime that I am sentencing him for from 6 June next year and totally accumulate the sentences, because of the separate nature of the crimes. However, Ms Suters argues that I could backdate the sentence for this crime, perhaps to 6 November - the date that he gave evidence last week. That would mean that he has served about five months in fulltime custody solely related to the other matter that he is presently in custody for. It would also mean that I fairly take into account in favour of her client the principle of totality. She urged me to view his sentence holistically. Her point here regarding the commencement date is linked to her third point about there being special circumstances for altering the usual relationship between a non-parole period and the balance of the sentence. This is where her point about the time her client has spent at liberty in the community is relevant. I repeat, he has only spent a little over 10 months at liberty since he became an adult, some 17 years ago.

12. Ms Suters points out that her client is at risk of becoming institutionalised. As she said, there have been only four occasions when he received a sentence other than custody and most of those were when he was under 18. She argued that a longer period of parole would assist her client in breaking the cycle of moving in and out of custody which is, again I say, graphically illustrated by exhibit 1 which she produced.

13. Ms Suters fairly and realistically acknowledges that she cannot say that her client’s prospects of rehabilitation could be described as good and therefore favourably taken into account under the statute law. But she points to the Ngara Nura program which her client is already enrolled in. I have read the material which she tendered about that. It seems to be a very positive program and commences before an offender is released from custody. I think she has made out a case for there being special circumstances to alter the normal relationship in her client’s case.

14. It seems to me, taking into account various matters, that an appropriate sentence for the crime that Mr Dawson has committed would be four years’ imprisonment. However, he pleaded guilty at what is acknowledged to be the earliest available opportunity. I would therefore discount that four year sentence to a sentence of three years’ imprisonment. That is the sentence which I would shortly impose, three years’ imprisonment.

15. For a sentence of three years’ imprisonment, the non-parole period envisaged by the Crimes (Sentencing Procedure) Act 1999 is three-quarters, which would be about two years and three months. Mr Robertson received a non-parole period which was just over 60% of his head sentence. I might add that the three year sentence which I have imposed on Mr Dawson is some months less than Mr Robertson’s sentence because of Mr Robertson’s worse criminal record relating to break, enter and steal. I have in mind that a non-parole period for Mr Dawson of 22 months - that is one year and 10 months - would be appropriate. That represents 61 per cent of the full sentence.

16. The special circumstances are those pointed out by Ms Suters of the need for her client to be supported once he is released on parole and for his parole work to be effective, given the preparation he will have had during the Ngara Nura program before his release.

HIS HONOUR:   I am going to sentence you now Mr Dawson, stay there.

17. I sentence you to three years’ imprisonment. I accept the submission of Ms Suters and I will backdate it to 3 November 2014 so the three year prison sentence commences 3 November 2014. It will expire on 5 November 2017. I fix a non-parole period of one year and 10 months. That also commences on 6 November 2014 and will expire on 5 September 2016.

HIS HONOUR:   Please if you would both check those figures.

FITZHARDINGE: Content with the figures your Honour, there was just a slip of the tongue in relation to the commencement of the three year sentence. Your Honour said 3 November.

HIS HONOUR: I meant the 6th thank you.

18. That will commence on 6 November 2014 and expire on 5 November 2017.

HIS HONOUR:   There is a back-up offence, my associate reminds me. Is it withdrawn or what is the situation? Exhibit A says yes back up charge to be withdrawn at conclusion of sentence.

FITZHARDINGE: Yes your Honour.

19. I note that the back-up charge has been withdrawn by the Director and I should acknowledge, returning to my reasons, Mr Fitzhardinge had nothing to add regarding Ms Suters’ submissions.

20. Mr Dawson you have got a three year prison sentence. I have backdated it to last week when you gave evidence. So it started on 6 November 2014. Your three year prison sentence will therefore expire on 5 November 2017, do you understand? I fixed a non-parole period - normally 75 per cent as you probably know. That would be two years and three months, but I have reduced that to one year and 10 months, that is 22 months, one year and 10 months. That also commenced 6 November 2014. That will expire on 5 September 2016.

HIS HONOUR: Now Mr Fitzhardinge, Ms Suters it is a three year prison sentence so I fix parole under s 50 don’t I?

21. I make an order directing Mr Dawson to be released on parole on 5 September 2016. Conditions of parole are these:

1. that he be of good behaviour;

2. that he notify the Registrar of this court of his address and any change of that address;

3. that he attend court if he receives a notice to do so;

4. that he accept supervision from Community Corrections and all reasonable recommendations and directions from an officer of that service.

22. Mr Dawson I have ordered you to be released on parole on 5 September 2016. That is a court order for your release on that day. You have got four conditions of parole. You have got to stay out of trouble, that is the most important one. Let the Registrar of the Newcastle District Court know where you are living, that is just so they can track you down if need be and if you change your address you let them know. Do you understand? If you get a notice to come to court you turn up, you do not clear off so that the sheriffs and the police do not have to chase you and the most important or the second most important is to allow yourself supervision by Community Corrections and if they give you recommendations and directions then comply with them. You know better than I do from your past experience that they are experienced, they know what they are doing. You are going to come out primed by this program which, to your credit, you are undertaking. It looks as though you have taken a real turn for the better at this stage of your life. It is going to be much tougher when you are out than when you are in, because one of the points made by Ms Suters is you have spent so much time in gaol that that is why it is going to be important to let them help you. They know what they are doing and they will help you once you are out do you understand that?

OFFENDER: Yes your Honour.

HIS HONOUR: All right good luck.

AUDIO VISUAL LINK CONCLUDED

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Decision last updated: 12 February 2015