R v Edward Christopher BOYD

[2008] NSWDC 322

CITATION:	R v Edward Christopher BOYD [2008] NSWDC 322
HEARING DATE(S):	5 December 2008
EX TEMPORE JUDGMENT DATE:	5 December 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	Sentenced to imprisonment with an effective overall sentence consisting of 5 years with a 3 year non parole period
CATCHWORDS:	Criminal law - Sentence - Aggravated break, enter and steal - Possession of house breaking equipment - Degree of planning - Alcohol addiction
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Ponfield (1999) 48 NSWLR 327
PARTIES:	The Crown Edward Christopher Boyd
FILE NUMBER(S):	DC 2008/11/1017
SOLICITORS:	NSW DPP Peter Murphy Solicitor (Offender)

SENTENCE

1 HIS HONOUR: One of the important matters to look at when sentencing an offender for an offence of break, enter and steal or in this case aggravated break, enter and steal concerns the nature and value of the property stolen. Sometimes items of great sentimental but little monetary value are taken. Other times property of considerable value is stolen. Here the property was neither of sentimental value or of highly significant monetary value, but it was still very important to the school from which it was taken.

2 Part of modern education requires modern technology. In this case the Nicholson Street Public School had finished installing some audio visual equipment on 17 June 2008. The offender and his de facto partner broken into the school and stole some of that equipment the very next day. Fortunately the education of the children would not have been greatly affected because the offender and his co-offender were arrested almost immediately.

3 In assessing the gravity of this offence, I do take into account that the victim of the offence was a school and that the education of the children would have been affected, had the offender managed to complete doing what he wanted to do.

4 When the offender and Ms Thurlow, his co-offender, broke into the school at about 12.25am on 18 June 2008, they set off an alarm. Police and security officers attended. When they got there, they saw the offender and his co-offender carrying a large flat screen television with a combined VCR/DVD recorder on top. Police called out to them to stop. Both offenders put the TV down, but the co-offender, Ms Thurlow, picked up the other piece of equipment and they ran away. Police were calling “stop there, Police” but the offenders did not. Ms Thurlow was arrested after she climbed onto a fence, and fell off, injuring herself in the process. The offender got a bit further, but was eventually detected hiding under a tree. He was arrested and when asked what they were doing, Ms Thurlow said “yeah, we broke. We were desperate.”

5 The statement of facts tendered and signed by the offender contains this; in a conversation between police and Ms Thurlow, when the police officer said to her “how were you going to get the stuff back to Blacktown?” Ms Thurlow replied “We had to call when we were ready to be picked up.” I mention that in particular because of the way the offender gave his evidence today. He was to my impression, incredibly anxious to suggest that the third person involved, who was never named, had a very limited involvement in this matter. According to the offender, he had not quite worked out how he was going to get this large flat screen television away from the school after he had broken into it and stolen the TV. Perhaps, he said, “we would have called for a lift.” Of course the truth is much more likely to be what Ms Thurlow said to police; that is they had already arranged that the third person would come and pick them up when they were ready.

6 Fortunately as I said, the equipment was recovered and it was reinstalled a couple of days later.

7 The other offence for which the offender is to be sentenced concerned an offence of possessing house breaking equipment. When he was arrested, the offender had two screw drivers, both about twenty-five centimetres long in the rear of his jeans pocket. Ms Thurlow also had equipment including screw drivers, spanners, jimmy bars and other breaking implements. These were said to have come from the motor vehicle which the offender and Ms Thurlow owned, driven by this third person.

8 The offender has a lengthy criminal history, although it does have to be said that there are fortunately many matters relatively minor; at least less serious than the one for which the offender is to be sentenced for today. He has a problem with alcohol. One of the things I did accept from the offender in the witness box is his evidence that all or at least almost all of his offending is due to his excessive consumption of alcohol. He said he has had a problem with alcohol since he was fifteen years of age. He says that this offence was at least partially motivated by a desire to buy more alcohol. In fact the presentence report suggests that that is the sole motivation, although in court the offender suggests that as well as buying alcohol, he also had to buy food and other necessities. The offender was on bail at the time of this offence. That represents a significant matter of aggravation.

9 The offender is now forty-nine years old and frankly is old enough to know better. There needs to be a substantial component of general deterrence in this case. Whether the offender did plan to commit this offence before he went fishing or only thought about it after he had left where they were fishing and went for a walk, the decision that the offender made to break into somewhere to obtain some money seems to have been made fairly lightly. It was, as I say, an offence committed at least partially simply so he could buy more alcohol.

10 The offender says that his offence was foolish. It certainly was. The offender has expressed his remorse, although that seems to be almost entirely due to the fact that he has, through his criminal activity, got Ms Thurlow involved. She is facing sentence early next year. The offender says Ms Thurlow and he had written to the school, expressing their remorse for what they did. I am prepared to find that the offender has expressed remorse as that term is now used in s 21A of the Crimes (Sentencing Procedure) Act. The offender pleaded guilty to these offences at an early stage and so I will discount the sentence I would otherwise have imposed for both of them by approximately twenty-five percent.

11 The guideline judgment in R v Ponfield (1999) 48 NSWLR 327 sets out a number of matters that should be considered when an offence of break, enter and steal is considered. In this case, as I mentioned, the offender was on conditional liberty. I am satisfied that whilst there was not what I would call “professional planning” involved, this offence was planned. The offender decided at least while he was off walking that he would commit an offence to get some money. This required making a telephone call to a person who he knew would both give him a lift and had with him the tools necessary for the offender to commit the offence. There was that degree of planning. The offender has a prior record. There is one matter of break, enter and steal on it and other property offences as well. As I mentioned before, the property taken was not of sentimental value or particularly valuable in monetary terms, but it was important to the work of the school and the education of the children who attended it.

12 Turning to the specific matters in s 21A, I cannot find that the offender has good prospects for rehabilitation and is unlikely to re-offend. The evidence suggests the offender has had many opportunities to avail himself of counselling and the like to deal with his addiction to alcohol, but he has either not taken advantage of them or they have failed to bring about a change in the offender’s behaviour, as this very offence demonstrates. Mr Murphy placed emphasis on the suggestion that the offender could be dealt with by way of a suspended sentence. Of course this would require that the sentence imposed upon the offender was two years or less and I am certainly not entitled to decide firstly to impose a suspended sentence and the secondly to decide whether the period of imprisonment will be two years or less. A significant hurdle which the offender and Mr Murphy have to overcome is the fact that this matter has a standard non-parole period of five years; thus the standard non-parole period is two and a half times the cut-off period of the head sentence, which would entitle the offender to a suspended sentence.

13 I am satisfied that this offence is in the middle of the range of objective seriousness, primarily because of the fact that this was a school that was broken into and educational material and equipment used in the education of children was stolen. Of course the standard non-parole period is not of direct application given the pleas of guilty, but it remains as a guide for the sentence to be imposed. There can be no doubt that Parliament intended by the selection of a standard non-parole period of five years and more fundamentally perhaps the inclusion of aggravated break, enter and steal offences in the category of offences carrying a standard non-parole period, that significant sentences of imprisonment are to be imposed when offenders such as the present are detected.

14 There are special circumstances in this case relating to the offender’s need to deal with his alcohol problems with the assistance of the Probation and Parole Service upon his release to parole, if that be the case. Although because of the length of the sentence I will shortly announce, it is not me who sets the conditions of parole. I do recommend that he be closely monitored and counselled regarding alcohol addiction on his release to parole.

15 The offence of possess housebreaking implements has a fixed term of imprisonment of two years. That is a fixed term because of the sentence I will impose on the aggravated break, enter and steal matter. The offender is sentenced to imprisonment. I set a non-parole period to date from 17 June 2008 and expire on 16 June 2011 and I set a head sentence of five years for that matter.

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