R v Innes

[2008] NSWDC 260

CITATION:	R v Innes [2008] NSWDC 260 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	15-18 April; 21 April 2008
JUDGMENT DATE:	10 October 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Knox SC DCJ
CATCHWORDS:	Criminal Law - Sentence - Break and enter - Larceny - Damage - Public facility - Hospital - Automatic teller machine - ATM - Ram raid - Persons present - DNA - Admissions - Premeditation - Drug abuse - Alcohol abuse
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Guthrie [2002] NSWCCA 77 R v Morris [2008] NSWCCA 115 R v Ponfield (1999) 48 NSWLR 327 Veen v R (No 2) [1988] 164 CLR 465 R v De Simoni (1981) 147 CLR 383
PARTIES:	Regina Brian Innes
FILE NUMBER(S):	07/21/3110
COUNSEL:	Crown: Mr Williams Defence: Mr Stewart

JUDGMENT

1 HIS HONOUR: On 21 April, 2008, the offender was convicted by a jury following a trial in the District Court at Campbelltown on the following count:

2 On 6 September 2005 at Campbelltown in the state of New South Wales, being in the company of other persons, did break and enter a building, namely the Campbelltown Hospital, the property of the Sydney South West Area Health Service at Therry Road, Campbelltown, with intent to commit a serious indictable offence inside those premises, namely larceny.

3 The maximum penalty for that offence pursuant to s 113(2) of the Crimes Act 1900 is fourteen years imprisonment.

Facts

4 In terms of the facts, consistently with the verdict of the jury I find the following facts to have been established on the evidence given in the trial.

5 At about 4.20am on 6 December 2005 two vehicles, a Mitsubishi van and a four-door cabin Nissan utility, crashed through the foyer of the Campbelltown Hospital. There were three individuals involved in the raid. The purpose of the entry into the hospital was to try to remove a large ATM machine located in a wall on the foyer of the hospital. There was considerable damage caused from the attempt to remove the machine. After numerous attempts to remove the ATM, those involved were unable to actually remove it from the premises.

6 A video of the break and entering into the hospital was played in the trial. In the course of the getaway the van apparently malfunctioned and either stalled or was unable to move, or be moved, despite attempts by at least two of the offenders to push start the vehicle.

7 All three of them got into the utility. It was driven at high speed through another glass section of the foyer wall, out and onto an exit road from the hospital. A trail of broken glass was followed by a security guard, Mr Brad Johnson, who located the van, which was by then abandoned with its engine still running a short distance away in Jaggers Place, Ambarvale.

8 Mr Johnson had seen the utility on an earlier occasion that evening. He described it as having had three occupants, one of whom had a shaved head and was leaning out of the window from the waist up.

9 After locating the vehicle Mr Johnson called the police. A police dog squad handler was called with a sniffer dog. The dog was unable to pursue a scent. Ultimately a police-contracted tow truck operator, Mr Ahmed Zahabe, turned the engine off. He said there were no keys in the ignition and it appeared that the car had been started using wires underneath the steering wheel. It was clearly a stolen vehicle.

DNA evidence

10 The utility was removed to a holding yard. The police located a number of items in the utility including a screwdriver. The screwdriver contained a sample, which was subjected to DNA analysis. It contained DNA consistent with the DNA of a Mr Shane McGee.

11 Miss Vivian Bilby from the Division of Analytical Laboratories at Lidcombe gave evidence that the probability of that DNA occurring in the general population was one in 280 million persons.

Co-offenders

12 Both the Mitsubishi van and utility had been stolen. A statement of the van owner was written by consent. He did not know the offender nor Mr McGee nor Shane Pope, the other person said to be a co-offender. Ms Crawford did not know either Mr McGee or the offender or the other person said to have been involved in the proceedings, as I say, the individual named Shane Pope, who was referred to as ‘Popey’ throughout the trial.

13 No proceedings have been initiated, I am informed, against Mr Pope, or anyone else other than Mr Innes and Mr McGee.

Other witnesses

14 Evidence had been given by the user of the utility, Miss Emily Crawford, to the effect that she had just driven the vehicle down from Singleton the previous evening. She parked it outside her sister’s home in the Campbelltown area. It was missing the next morning.

15 Ms Crawford, who is a boilermaker by occupation, identified the screwdriver in which the DNA, said to be that of Mr McGee, was located. She had a set of the same, or similar, screwdrivers.

Damage

16 In terms of damage, the hospital foyer was also extensively damaged, as the photographs tendered in the trial indicated.

17 The damage caused in the commission of the offence was extensive. Damage was caused to the glass doors and windows, the floors, various walls and structural supports, the ATM, Christmas decorations and both stolen vehicles.

18 The cost of repairing the damage was as follows:

* damage to the hospital $75,259.59,
* damage to the ATM $27,234,
* damage to Emily Crawford’s utility $3,500.
The total value of the damage was, accordingly $105,993.59.
19 There has been no restitution of any amount for those damages, given the offender’s circumstances that is not likely to occur, those costs will have to be borne by the community.

Evidence identifying the offender: Ms Sarah Allan

20 In terms of evidence identifying the offender, and I list this because of the offender’s refusal to accept his guilt in relation to this particular matter, evidence was given by Miss Sarah Allan, the former girlfriend and partner of the offender. She said the offender had left the premises which she then occupied with him on the afternoon of 5 December 2005 in Shane McGee’s car.

21 There was evidence given by both Miss Allan and her father, Mr Allan, and the deputy principal of the school Mr McGee and Mr Innes had attended, to the affect that they were close friends and associates both at the time of the offence and at school.

22 Miss Allan saw Mr McGee the following afternoon on 6 December 2005 at about 3.30pm. She said that Mr Innes had not come home the previous night. When she saw him in the afternoon of 6 December he had a shaved head, which he had not had the previous afternoon.

23 He, the offender, told her that he had “fucked up” and she said to him, “What the fuck are you doing?” He said to her, “that was my first ATM and my last”.

24 He also said to her that he had to drop his jumpsuit in the field next to the Campbelltown Hospital and the sniffer dogs were probably already there to sniff the jumpsuits out (transcript 17 April 2008 page five). The offender also told her to watch the news.

25 Ms Allan watched the Channel Seven news that night and saw coverage of a ram raid incident on the Campbelltown Hospital early that morning. Miss Allan was not aware of any other publicity in relation to the incident and did not read the newspapers. Clearly then she got that information from the offender.

Mr Alex Allan

26 Mr Alex Allan, Ms Allan’s father, also gave evidence. He had met Mr Innes when Mr Innes and his daughter commenced a relationship sometime during 2005. He used to accompany them shopping and occasionally going to hotels. He had also met the individuals known as Popey or Popeye and McGee on one or two other occasions. He understood from comments made by the offender that they were friends of the offender’s.

27 Mr Allan also said that on one occasion after he, his daughter, and the offender had been for a drink at the local hotel at Minto, they went to the offender’s parents home. He had been there some four, five or six times.

28 He recalled hearing about the ram raid at the Campbelltown Hospital on the news. He said to the offender, “Did you hear what happened at Campbelltown?” The offender just shrugged.

29 The offender said that he, Popey or Popeye and McGee were involved and that Popeye was driving the vehicle and he got it jammed between the wall and the pillar at the hospital. He also said that they “had to do a runner”.

30 Mr Allan then said to the offender, “You want to start looking at yourself, looking after or doing something different or you’re going to get yourself into serious trouble”.

31 It appears from the evidence of Ms Allan that the relationship between them was volatile. It included on one occasion, Ms Allan attacking the offender with a stick because of his apparent association with other women and in particular a close friend of Ms Allan’s.

32 There had been further incidents, or at least allegations of, assault. Ms Allan had informed her father of this and he, Mr Allan, was of the view that Ms Allan would be better off out of the relationship.

Inconsistencies in evidence

33 The defence at the trial mounted an attack on the veracity of both Ms Allan and Mr Allan, essentially going to matters of inconsistencies about the date and place of the admissions made by the offender, to each of them as I have outlined it above. It was put to both witnesses that they were motivated by feelings of revenge over matters arising out of the relationship between Ms Allan and the offender and its breakdown. The jury clearly did not accept those criticisms and the related submissions.

Chronology of admissions and DNA

34 Evidence was also led as to the chronology of when the DNA sample was obtained and identified as being a similar match to that of Mr McGee as occurring in the July of 2006. An essential part of the Crown case was that both details could not possibly have been known to either Ms Allan or Mr Allan at the time the offender made his comments and admissions to them.

35 That evidence, the veracity of Miss Allan and Mr Allan, and those submissions as to the effect of the admissions in relation to the overall chronology were clearly accepted by the jury.

Evidence on sentencing proceedings

36 The offender did not give evidence at the trial, however after some hesitation, he did so at the sentencing proceedings. It is clear that from his presentation and his evidence that he has some difficulties and has limited insights and maturity.

37 The evidence was given by him on the basis of an understanding, apparently that he would not be cross-examined on matters relating to the offence. In those circumstances, the Crown submits and I think correctly so, that I can give limited weight to any other matters giving his account, or more accurately, the denial of his involvement in the offence.

Pre-sentence report

38 A pre-sentence report dated 26 May 2008 was prepared by Shannan Mulligan of the New South Wales Probation and Parole Service, Silverwater Parole Unit (exhibit S2). That report details that the consistent contact that Mr Innes has had with the criminal justice authorities. He has served periods of incarceration, bonds, as well as periods of parole supervision, which appear to have been less than satisfactory. The offender himself advised that he has never managed to stay out of custody for an extended period of time.

39 The Court notes that the police antecedents relating to previous offences for this offender, indicate him to be a high risk offender for the Macquarie Fields Local Area Command, due to his association with active offenders, as well as a lengthy criminal history. The report notes, however, that the supervision closure summary for the offender’s parole order expired in April of 2005. It reported a favourable response to the order requirements and his successful engagement with appropriate authorities and services relating to his substance abuse. He successfully completed this order. The author of the report states that attempts to contact the offender’s family were unsuccessful but it detailed the offender’s history based on his self report.

40 Other relevant areas have been covered by the author of the drug and alcohol report, which I will refer to below.

Drug and alcohol report

41 A drug and alcohol report dated 10 July 2008 of Heather van Bruinessen was tendered and marked as exhibit 3. The offender in his oral evidence has demonstrated that he clearly benefited from a one-on-one relationship with counselling with Ms van Bruinessen.

Subjective features

42 That report gives a relevant background of the offender being a 25-year-old male; although 22 at the date of the offence. He was born in Macquarie Fields in Campbelltown. He is single and he has no children.

43 He is the fourth eldest of six siblings. He was raised by both parents until they separated when he was 12 years of age. Currently he has a good relationship with his mother and father.

44 He has stated that he experienced difficulties at school and would often truant. He was placed in a special class for children with behavioural problems in high school. He used to fight with his teachers. No investigation was ever undertaken to assess or determine the reason for his misbehaviour. Mr Innes was frustrated at school as he could not keep up and was always tired. He left school half way through year nine and worked at Bradford Batts for approximately six months. He then did car detailing for a short period of time.

45 Mr Innes states that, as a child, his home was very stressful and he would not want to go home. He witnessed domestic violence and the bashing of his mother by his father in the home. Both of his parents were alcoholics. There was little food in the house and whatever money was available appeared to be spent on alcohol. Mr Innes also stated that his father also used marijuana. Police were apparently called to the home regularly.

46 The defence submits that his level of his emotional and intellectual immaturity is significantly lower than his chronological age. Further, that this is directly related to his childhood experience at growing up in a dysfunctional home with an absence of positive role models. It is submitted that the impact of this deprivation has been so severe that it can be reasonably regarded as a form of disability.

47 While I do not agree with this submission, what is clear is that the offender has had no positive adult role models in his life. He has also had a dysfunctional family background, he has also got clear conflictual attitudes in relation to authority.

48 Throughout Mr Innes’ childhood until 2003, his father would leave the family home for long periods of time and then return. In 2003 his father left the family home permanently and he now resides with another sibling. Mr Innes stated in the reports and in evidence that he now has a good relationship with his parents and his mother is very supportive of him. The pre-sentence report notes that the offender’s older brother is currently incarcerated and his younger sibling is currently supervised by a community officer.

Drug history

49 In terms of his drug history, Mr Innes first consumed alcohol at the age of 12 and he would steal alcohol from the family fridge on a weekly basis and get intoxicated. He would then go to bed and avoid all the arguments and fights that would usually take place in the home. He continued this behaviour for about six months until he began using marijuana on a daily basis. He estimated that at the time of the offence he was using between one and one and a half grams of marijuana per day.

50 At the age of fifteen he was introduced to heroin by a friend and stated that heroin was his preferred drug of choice.

51 Mr Innes stated that he has used other drugs including speed, ecstasy and ice. He claims that prior to his incarceration his drug use was out of control. He was using half a gram to one gram of heroin a day and speed twice weekly. He concedes that he was addicted.

Drug/crime relationship

52 In terms of his attitude to this offence, Mr Innes has stated and repeated that he is not guilty of the offence for which he is currently before the Court, however, he did state that prior convictions had been all related to his drug use.

53 He also has indicated an insight in that he has now attained an age where he has started to review his life and he has examined his future possibilities and his desire not to continue to return to custody.

54 It is clear that he has a good relationship with Ms van Bruinessen and that is to be encouraged. However, if the offender did not realise it before, he should accept what he has been told, that with his current drug habits and his lifestyle if he continues the way he is, he is likely to die by the time he is 40 given all the currently available statistics.

Treatment in the community

55 In terms of his treatment in the community, in July 2005, Mr Innes entered the MERIT Program, however he was discharged from the program due to urinalysis testing proving positive to drugs. He admits he was not ready to deal with sensitive issues relating to his drug use and offending behaviour at that time. He readily admitted that he used the program as an alternative to a gaol sentence and that his motivation was misguided.

56 The pre-sentence report indicates that he was subject to a breach report due to his poor attendance and compliance with groups counselling and pharmacotherapy appointments.

Treatment in custody

57 Mr Innes has completed the SMART Program, referred to as in an acronym being the Self Management and Recovery Training Program, whilst he has been in Parramatta gaol. He attended every session and contributed to group discussions.

58 He has attended six counselling sessions with the author of the drug and alcohol report and one with a psychologist at the Parramatta centre. Prior to the incarceration he has never participated in counselling or involved himself in other interventions.

59 Mr Innes was able to identify that on previous occasions when he was released from custody, he returned to his home environment, and he has said, and I quote from the phrase, “not congruent with his rehabilitation.” To me, that seems to be an understatement.

60 Mr Innes also discussed how his sister had had the same childhood experiences as him but she has turned her life around and is raising her children in a loving home environment. He has expressed his admiration for her and his desire to emulate her.

61 Mr Innes has attended four alcohol and Alcoholics Anonymous meetings in the Parramatta Centre.

Conduct in custody

62 In terms of his conduct in custody, in January 2008 Mr Innes had a drug related charge whilst in the Parramatta centre, when a urinalyses test returned positive due to prescription medication Avanza, which was not prescribed for him. He readily admitted his guilt and stated that the stress of his impending court case and being on remand for two years, during which time there had been two mistrials, was his self justification for taking the pill to help him sleep, however, he recognises his behaviour was not justifiable.

63 Mr Innes was confined to cells for three days in July 2008 with a charge of “fight or other combat”. The offender states that he was confronted while making a phone call and that he walked away from the incident, however, later in the day he was confronted by the same person who made movements to strike the offender and he stated that he responded in self defence.

64 The pre-sentence report indicates the offender has incurred the following institutional misconducts:

a) give false or misleading information,
b) failed a urine test,
c) possess drug implements,
d) enter other cells,
e) possess drug,
f) failure in test
g) and enter other cells.

65 My concern about this is that, this does, in my view, cast doubt on his capacity to undertake any effective form of drug rehabilitation on his release from gaol. Without such rehabilitation his overall prospects of rehabilitation, in my view, must be regarded with great circumspection.

66 He has also, apparently while in gaol, the subject of what is called association alerts, presumably because of his associates within the gaol.

67 He has had some limited contact with the education facilities and made inquiries regarding TAFE courses, but does not appear to have followed those up.

Release plans

68 In terms of his release plans, he has stated to the author of the drug and alcohol report that on his release he has no intention of returning to the family home. That seems to be somewhat inconsistent with his evidence to me, although he does seem to be relying very much on his sister in that regard.

69 He is currently on the Department of Housing waiting list and intends to follow this up with welfare services before his release.

70 He plans to start his own painting business and continue TAFE to broaden his business management skills.

71 He states that, in order to maintain his abstinence from drugs in the community, he would attend one on one counselling and Narcotics Anonymous meetings. However, I must emphasise these are only wishes and intentions.

Recommendations

72 The drug and alcohol counsellor, Ms van Bruinessen, recommends that the offender be encouraged and given the opportunity to continue on his recovery pathway, and to continue with one to one counselling and pursue the goals with which he has identified and initiated while at the Parramatta centre. Ms van Bruinessen is of the view that, with a network of support persons, Mr Innes has the capacity to implement positive lifestyle changes and living within the acceptable normalcy of society.

Objective seriousness

73 In terms of the objective seriousness of the offence, the Crown submits that the objective seriousness is towards the upper end of the range of seriousness for offences under s 113(2). That submission is supported by the following considerations, mainly that the building, the target of the offence, was a public hospital where there were both patients and staff working at the time. The fact that the target was a public institution dedicated to providing critical and other medical care gives the following conclusions, mainly that there is an added interest in denouncing the offender’s conduct, and there must be appropriate recognition of the harm done to the community, it includes a significant disruption to the hospitals usual service delivery.

74 As was clear on the voir dire exhibit, the Channel Seven News Report, the public use of the main entry foyer was disrupted, for the purpose of the police investigation an engineering assessment of the safety of the building following structural damage and clean up and subsequent repair works. During those periods it could have reasonably been anticipated by those involved that the access of members in the community needing critical and other medical care was compromised. In addition, the community has subsequently been deprived of the convenience of an ATM at the hospital, which has never been replaced.

75 The targeting of such an important public institution for no purpose, other than greed, demonstrates a level of callousness and anti-social behaviour. Which firstly, demonstrates an increased need for personal deterrence if the community is to be protected in the future from such highly anti-social crimes and secondly, demonstrates the offenders prospects of rehabilitation are less than they might be, given that he was prepared to engage in such a callous act in the first place.

76 I must say, that the manner of break and entering, namely crashing a stolen utility vehicle at speed through the glass entry way of a foyer of a facility such as a public hospital, was a considerably more objectively serious case than the ordinary case under s 113(2). In my view that needs to be reflected in the finding of at least a mid-range criminality in these circumstances.

Subjective features

77 In terms of subjective features, the offender is aged 25. His family background was set out in the pre-sentence reports and the drug and alcohol reports, and I will touch on that briefly below.

78 His education was at the Sarah Redfern High School in the immediate area. There is no remorse expressed by him, nor is there any explanation of his behaviour. He does not accept the jury’s verdict nor his guilt, despite the opportunity extended to him to do so.

Defence submissions

79 Counsel for the offender has submitted forcefully that the offender’s background needs to be taken into account. That is because the offender struggled at school, not just because of the lack of intellectual capacity, but also because of an apparent total lack of support and assistance in his home environment and the lack, and indeed complete absence of parental nurturing. The lack of intellectual and educational maturity is reflected in the ill-considered nature of the offence, a criminal endeavour which was guaranteed, as submitted, to be disastrously unsuccessful.

80 Mr Innes also grew up in a home where there was abuse of alcohol and drugs as I have outlined them. From a young age he was replicating this behaviour by commencing to abuse alcohol from about the age of 12, cannabis shortly thereafter and heroin from age 15.

81 At the time of the commission of the offence, the offender reported that his drug use was out of control and that he was using half a gram of heroin per day and amphetamine twice weekly. It is submitted that that can only be the one explanation for committing an offence of such grave irresponsibility and stupidity. I agree with that submission and description.

82 I do not however agree that his tendency to abuse drugs and alcohol constitutes a particular form of disability. As I have indicated in the course of submissions, other members of his family with the same background have been able to avoid this. What is clear is that he does really have a drug problem, and as I have said earlier, I am not satisfied that he is going to be able to deal with it.

Offender’s prior convictions

83 A copy of the offender’s prior convictions was tendered becoming exhibit S1. That showed the offender has had an involvement with the criminal justice system from February 2000 commencing at the Campbelltown Children’s Court, however, because those are children’s court matters I do not take them into account. But thereafter he has had a series of convictions for various offences of dishonesty, including larceny, affray, assault, car stealing, unauthorised use of vehicles, possess car break implements, drug matters, assault police, receive stolen property, possess cutting implements and ammunition, as well as possessing a shortened firearm.

84 That record indicates an escalating and increasing criminality on a very serious basis.

Sentencing factors – s21A Crimes (Sentencing Procedure) Act

85 In terms of the relevant factors under s 21(a) of the Crimes (Sentencing Procedure) Act 1999, the elements of the offence include breaking and entering into a hospital in company.

86 Against that background I am bearing in mind the relevant R v De Simoni (1981) 147 CLR 383 principles and the need to avoid double counting. The aggravating factors, which seem to me to be established on the facts are as follows.

Planning and premeditation

87 Firstly, planning and premeditation. That the commission of the offence involved a high degree of planning, as demonstrated by the following:

a) that there were two separate vehicles stolen prior to the offence and used in the commission of it. One of the vehicles (the utility with a bulbar) was clearly stolen specifically for the purpose of breaking through the entry glass, while the second vehicle (the van) was stolen it would seem specifically for the purpose of carrying away the ATM.

b) additional stolen number plates were used in the commission of the offence.

c) as is apparent from the CCTV footage, the offenders knew where in the foyer the ATM was located. It follows that one or more of them must have previously reconnoitred the scene; and finally

d) the offenders all wore balaclavas to disguise their identities.

e) there is a reference in the admissions made by the offender to Ms Allan that they were wearing jumpsuits. None were found by the police, including the police tracker dogs, nor are those suits apparent, at least to me, from the video of the actual road taken by the hospital CCTV cameras.

f) although the enterprise was probably doomed to failure, it showed all the hallmarks of considerable criminality in it planning, premeditation and execution.

The offender knew persons were present

88 The offender must have known that persons were present. Indeed one of the eyewitnesses, Ms Joanne Venn was exposed to the risk of potential injury by her presence in the foyer, or in the vicinity of the foyer at the time of the offence. Given that it was a public area in a 24-hour establishment, there was a real risk of danger to the members of the community, despite the fact that the front door was closed at that time of night. There are also obviously, patients and staff on the premises and that could have been foreseen.

Prior criminal history

89 In terms of prior criminal record, I have already indicated that the offender’s prior record does not entitle him to any leniency.

90 He has got a substantial history of larceny type offences, as well as a previous break and enter offence. I think the Crown is correct in the submission that his record is an aggravating feature, in the sense that is described in Veen v R (No 2) [1988] 164 CLR 465, and that, in combination with the callous nature of the offence warrants, in my view, some increase in the sentence which might otherwise have been imposed. Those are essentially the submissions of the Crown - with which I agree in this respect.

Mitigating factors

91 In terms of the mitigating factors, there are no relevant mitigating factors other than the possibility of some rehabilitation.

92 The offender, as I have noted, has not shown any remorse. He maintains his innocence in regards to this offence.

93 As I have said, I do not accept the submission that he was not fully aware of the consequences of his action, by virtue of his dysfunctional background and lack of insight.

94 Counsel for the offender also submits that there are good prospects of rehabilitation, given he has made considerable efforts while in custody to address the underlying cause of his offending behaviour. I disagree that there are good prospects. There are some prospects, which I will reflect in the finding on special circumstances, but that will very much depend, in my view, on the personal resources and determination of the offender.

95 As I said to him directly when he was in the witness box, I do not see a great deal on his track record which indicates that he has that capacity or those personal resources on which he can fall back.

Authorities

96 In terms of authorities, the guideline judgment of R v Ponfield (1999) 48 NSWLR 327 is relevant to the offences of break and enter under s 112 of the Crimes Act. There are some different considerations in relation to offences under s 113, under which the offender has been convicted. Nevertheless, it does seem to me that some of those factors indicate that the facts here prompt consideration of these headings.

97 Mainly the offence was committed at premises where sick or disabled persons could be expected to be present that is a public hospital. It was accompanied by significant damage. It was also likely the premises would be occupied, particularly at night. Even though the offence took place in the early hours of the morning, a hospital is a place where there are likely to be numbers of shift workers, including nurses, other paramedical staff, cleaners and security staff.

98 As I have said, one of the witnesses to the robbery was Ms Joanne Venn, who was on her way to access the ATM machine when the robbers were still in the foyer.

Findings as to role

99 In terms of findings as to role, the Crown based its case on a joint criminal enterprise involving the offender, Mr McGee, and another person. On the evidence available before me, it is not possible to find which of the offenders played what specific roles in the break and enter or the prior planning for the offence.

100 Mr McGee has since been found guilty by a jury and is to be sentenced later in 2008.

101 The offender and, as I understand the position, Mr McGee, have not given any assistance in identifying or locating the other co-offender.

102 The offender still regards Mr McGee as a friend as was evident from the content proceedings before Judge Bennett. However he says, when cross-examined about that, that the reason he refused to give evidence in those proceedings was that he considered that he would be regarded as an informer and subject to physical violence when he got back to gaol.

Consideration

103 In terms of my overall consideration, the factors that should be noted are as follows, what was involved in this incident was a violent and destructive breaking and entering of a large hospital community facility in the outer western suburbs of Sydney. Such areas are notoriously under resourced in terms of public health facilities, accordingly such facilities are very important to the society generally, particularly that community, those using such facilities and the facilities themselves must be afforded considerable protection.

104 The likelihood of people being present in the foyer of the hospital was apparent even at that time of the morning with shift workers, cleaners, nurses and paramedical staff likely to be present.

105 What was clearly the object of the enterprise was the removal of an automatic teller machine. This again is a community facility designed to be available to members of the public at all hours of the day and night without the concomitant problems associated with going to banks and other similar institutions. The evidence is, the ATM has been removed and not replaced.

106 Any violent ram raid can expect to induce fear in the likely occupiers of such premises including, in this case, anticipated members of the public and staff.

107 Against this count’s background, defence counsel properly concedes that this is a case of serious criminality. He also submits that it was not an offence of gratuitous violence. I have difficulty also in accepting that submission. It seems to me that what was involved was an act of premeditated violence involving considerable damage to property, with not a great deal of consideration being given to the likelihood of interfering with people in the position such as Ms Venn who was crouched down behind the central stairway.

Absence of restitution

108 There was, as I said, been considerable damage done to the hospital of the order of $105,000. There is no recompense or restitution either to the public or the owners of the motor vehicles or the relevant insurers. Accordingly, those are all costs which will need to be borne by the community.

109 There was also substantial damage done to both stolen vehicles. Again, those costs will have to be absorbed by the owners and insurers and thereby the community.

Deterrence

110 In those circumstances there is a clear need to establish a sentence which involves proper and full recognition of the requirements of general deterrence.

Rehabilitation

111 As I have outlined above, the offender has been extended a series of sentencing options in the past by a number of different courts, certainly over the last seven years, which have not resulted in any change of behaviour by him.

112 Despite his relatively young age there is nothing which militates against the sentence of full time custody that, in my view, is clearly mandated and required by the requirements of general and specific deterrence in these circumstances.

Authorities

113 I have reviewed the authorities, in particular those of:

R v Morris [2008] NSWCCA 115, which is a s 112(2) offence, and R v Guthrie [2002] NSWCCA 77.

JIRS Statistics

114 I have also examined the statistics published by the Judicial Commission for offenders between the ages of 21 and 25 with prior convictions. That shows that the range of sentences is of the order of between one year and 42 months imprisonment. The non-parole period is in the range of between six months and two years, however, those samples are relatively small in total.

115 Here I have set out in particular the two decisions I have referred to that an appellant review in the decision of R v Guthrie [2002] NSWCCA 77 resulted in a situation of a s 113(3) offence, a sentence of six years and six months imprisonment with four years and six months non-parole period.

116 There were different factors in that particular circumstance, in that particular case, but there are many commonalities.

Sentencing options

117 In terms of sentencing options, the offender was 22 at the time of the offence, as has been submitted on his behalf, a relatively young man. He has had, over the course of his criminal career, a series of sentencing options extended to him, including fines, probation, suspended sentence, community service orders. He has failed to comply with suspended sentence and, in particular good, behaviour bonds. He has been imprisoned on a number of occasions, commencing in 2000. The reality is he knew the system, the reality of the consequences of his actions.

118 He was also at the time of the offence, on bail in relation to a shoplifting charge and it is clear that his criminal record does not entitle him to any leniency whatsoever.

119 He has been deemed unsuitable for a community service order and ineligible for a periodic detention order.

Suitability for supervision

120 The author of the pre-sentence report identifies four areas of a criminogenic need.

a) Pro-social associates. His choice of associates in the past has been very poor and any release order should be strengthened if a non-association direction regarding co-offenders is provided. I propose to do that.

A similar direction preventing him from making contact with his former partner, Ms Sarah Allan, would also be desirable and I think that is not properly before me at the moment, those are remedies which if Ms Allan wishes to initiate them, could be initiated, but I would regard that as a proper matter for a term of his probation order.

b) Substance abuse counselling/rehabilitation. The fact that the offender has resorted to the use of drugs in custody, in order to deal with the stress related to this court matter, is of concern. He has claimed he will clearly need some intervention in this area generally if he is to obtain a drug free lifestyle, as I have said, I am not optimistic that that will happen however, that depends on him.

c) Employment and education. He has clear needs in that respect, again, those are matters that only he can address if he wants to.

d) I think it important that he attend an anger management or violence prevention program where it is available.

Special circumstances

121 In terms of special circumstances, it is submitted on his behalf that special circumstances should be found by virtue of his age, his dysfunctional background, the absence of role models, and his prospects of rehabilitation.

122 Initially I was of the view that there was nothing in the offender’s record which would give any confidence for any prospect of rehabilitation, indeed, his lack of remorse or contrition did not and does not auger well for rehabilitation.

123 He, however, has accepted, albeit very late in the piece that he needs to change all the risk factors associated with his current lifestyle, such as employment, his mates and his accommodation, and he accepts that those have attributed to his current position.

124 He has also, it seems, got problems because he has not completed the MERIT program, however there is light in this particular dark tunnel, in that he has completed the SMART program, so perhaps it is that he is able to change.

125 But what is of concern that he has, in terms of his own record, a non-compliance with the number of the sentencing options which have been extended to him, meaning that there would be some problems in fully accepting the recommendations or the submissions that have been made.

126 It does seem to me to be clear that he needs a longer period than average on probation to equip himself for a useful and non-productive, non-criminal life.

127 As I have said to him, if he does not and if he reverts to drugs, let alone any of the other anti-social aspects of his lifestyle, he is likely to be dead by the time he is 40.

128 I do note that he has also identified a positive role model in his family, particularly his sister. He does admire his sister, who suffered the same damaging childhood experience but seems to have been able to turn her life around. I watched him carefully while he gave his evidence and I think he was genuine in that respect, and he was also prepared to give that a go and I think he will do so on his release from gaol.

129 His relationship also with Ms van Bruinessen is, as he says, the first time he has been able to open up about the circumstances of his upbringing and the impact of that on his self destructive behaviour. I accept that he was telling me the truth about that, however, I just hope that he has got the personal resources to follow that through on his release from gaol and does not run into his mates or his lifestyle as soon as he is released.
130 That is going to take considerable personal fortitude. I hope he has got that determination.

131 But on that basis and given I think that there is some turn around, I am prepared to make a finding of special circumstances such at the ratio which the parole period bears to the head sentence be reduced from three quarters to two thirds.

132 I think it is and will be to his benefit if he accepts the terms and conditions as I have outlined them to him already, that he may well benefit from a longer period on probation.

133 In terms of the commencement date for his sentence, he was sentenced to a term of imprisonment on 1 February 2006 in relation to a shortened firearm offence that was backdated to 21 January 2006. The non-parole period for that expired on 20 October 2006.

134 On Friday 23 May 2008, the offender was sentenced by his Honour Judge Bennett SC to a total period of one month imprisonment for two offences for contempt, concerning proceedings relating to the co-accused Mr McGee. He had a two sentence of 28 days partially accumulated by four days, in other words a total of thirty-two days.

135 Those sentences expired on 1 June 2008 as I understand the position.

136 The offender has been in custody for this offence since 21 January 2006. In my view, the sentence should commence from 21 November 2006, in other words, at the expiration of the period after the non-parole period for the shortened firearm offence and after a relevant period attributable to the contempt offence. There is some measure of leniency about that, but I think that ought to be taken into account in the offender’s favour.

137 Now is there anything on that Mr Crown?

138 CROWN PROSECUTOR: No, your Honour.

139 HIS HONOUR: I’ll give you an opportunity, do you want an opportunity to discuss this with your client, I’ll wait on the bench if you like or do you want me to go off the bench Mr Stewart, just to see if there was anything else? That I’ve either got your submissions wrong. I’m not asking you to change my view, but if I’ve got your submissions wrong or the facts wrong.

140 STEWART: No, everything your Honour said is fine.

141 HIS HONOUR: All right, okay. Could you stand up please Mr Innes?

142 Following the jury’s verdict you were convicted and I confirm that, in relation to the charge for which you are convicted, you are sentenced to a term of five years and six months imprisonment to date from 21 November 2006 and to expire on 20 May 2012, with a non-parole period, that means inside, of three years and eight months imprisonment to expire on 20 July 2010.

Do you understand that?

OFFENDER: Yes your Honour.

HIS HONOUR: It will be a condition of your release to parole and I would recommend that your parole be subject to the following conditions, firstly that you be of good behaviour, you accept that, that to include that you not approach Miss Sarah Allan, do you accept that?

OFFENDER: Yes, your Honour, understood.

HIS HONOUR: Secondly, that you notify the probation and parole service of your housing details and your accommodation. Thirdly, that you comply with any programs that they direct as to your alcohol and drug treatment, and then finally, that you comply with and give them details of your associates, because they will be monitoring you in relation to that. Now I cannot tell you not to mix with people Mr Innes, but I think you know who I am talking about and the problem is, if you end up back in that area, you know who is going to be knocking on your door. So, I wish you good luck with that and I hope--

OFFENDER: Thank you very much.

HIS HONOUR: All right, thank you, I thank counsel for your assistance.

03/12/2008 - Removal of personal details of offender - Paragraph(s) 77