R v Jarrod Britt
[2012] NSWDC 62
•15 February 2012
District Court
New South Wales
Medium Neutral Citation: R v Jarrod BRITT [2012] NSWDC 62 Decision date: 15 February 2012 Before: Cogswell SC DCJ Decision: For the two offences of break enter and steal I sentence you to 1 year and 10 months imprisonment. Sentences imposed concurrently as the offences occurred very close in time. Under section 7 of the Crimes (Sentencing Procedure) Act 1999, I make an intensive correction order directing that the sentence be served by way of intensive correction in the community
Catchwords: CRIMINAL LAW - Sentence - relevant factors - prior criminality - minor record - gravity of offence - below middle of the range of seriousness - parity - co-offender serious criminal record, committed offence whilst on conditional liberty - premeditation - hours of planning - mental disorder - emotional reaction rather than mental health condition - little weight - response to charges - contrition - prepared to pay compensation - early plea of guilty - supportive family - good prospects of rehabilitation - imprisonment only alternative but referred for assessment for Intensive Corrections Order. Legislation Cited: Crimes Act 1900, s 112(2)
Crimes (Sentencing Procedure) Act 1999, s 7, s 9, s 10, s 67 and s 69(1)Cases Cited: R v Hemsley [2004] NSWCCA 228
Muldrock v The Queen (2011) 85 ALRJ 1154; [2011] HCA 39Category: Sentence Parties: Regina (Crown)
Jarrod BRITT (Offender)Representation: Solicitors:
Director of Public Prosecutions (Crown)
Morelaw Solicitors and Barristers (Offender)
File Number(s): DC 2010/427847
SENTENCE
I am sentencing a young 21 year old man who has a negligible criminal record. But on two occasions on one night in August 2010, he embarked upon a spree of breaking and entering with co-offenders into some commercial properties.
He was charged with two offences of aggravated break enter and steal. This is an offence against section 112(2) of the Crimes Act 1900. That section has affixed to it a maximum of 20 years imprisonment for each of the two crimes. Not only that, Parliament regards the crime as so serious that it has fixed a standard non-parole period of 5 years imprisonment to the crime.
It is important for a judge, before the judge sentences the offender, to set out briefly what happened which brought about the charges against the offender. In this case Mr Britt, with his co-offenders - a Mr Lang and a Mr Reuter - turned up at the Joyce Mayne store at Rutherford on 26 August 2010 at about 7 'clock. They looked around the store and were noticed by members of staff. They were there for about half an hour and then left. Then, just before midnight on the same night, the three of them turned up again. The store was, of course, by then closed. They smashed the glass panel of the store and got in. They then smashed cabinets containing electrical items. They took various items, including cameras, video cameras, mobile phones and two flat screen televisions. They put the haul into their car and drove off.
Then, a couple of hours later, they turned up at the Switchboard store at Glendale. Again they smashed their way inside and, whilst inside, smashed a number of cabinets. They stole things such as clothing, sunglasses, a wakeboard and a small amount of cash.
The phone of one of the offenders, namely, Mr Lang, had been intercepted lawfully by the police. There were various phone calls over the next few days between Mr Lang and the other two. What to do with the proceeds of the crimes was discussed. It seems clear that Mr Lang was the ringleader, and indeed he said in one of the phone calls that when he, Mr Lang, went back on one of the occasions to get more goods, Mr Britt was scared and said, "Let's go, man," and ran off.
It is also important when a judge sentences an offender for the judge to refer to things which are personal to the offender. In this case, as I said, Mr Britt is a 21 year old man. His only previous offences were a common assault and swearing in a public place, for which he received a fine and a bond. In fact, that occurred after the offences that I am sentencing him for. In 2009 he was fined for stealing. I note an offence of affray in 2008, but it was dismissed under section 10 of the Crimes (Sentencing Procedure) Act 1999 and I place no weight on that. But it is a relatively minor criminal record.
The Probation and Parole Service prepared a helpful report about Mr Britt. It was prepared by their officer Brenda Baker and dated 19 October 2011. Ms Baker summarised Mr Britt's case in the following terms -
"After being raised in a caring family atmosphere, Mr Britt appears to have had the benefit of having a sense of morality and work ethic attempted to be instilled in him. It seems that Mr Britt has emotional and behavioural problems which at this time are in their infancy of being addressed and his actions in these current offences have completely 'dumbfounded' his parents, but they still remain supportive of their son. It would appear that a level of immaturity and impulsivity were also factors in the offence, which are being addressed via his current interventions."
Ms Baker noted that he had been on a bond under section 9 of the Crimes (Sentencing Procedure) Act from 10 November 2010 - that is, after these offences - and that his "response to supervision was unsatisfactory". He had been given "numerous opportunities to abide by the conditions of his order, however he did not appear to treat his obligations to his order seriously, and breach action was undertaken. No action was taken on the breach at Toronto Local Court on 14 September 2011."
It is important to note also that the Chief Judge of this Court, Blanch J, sentenced the co-offender Dylan Lang on 21 September 2011. Mr Lang had a serious criminal record and also committed the offence whilst he was on conditional liberty. For each of the aggravated break enter and steal offences that I am sentencing Mr Britt for, Blanch J imposed on Mr Lang fixed term sentences of 2 years each. His Honour staggered the sentences so that the effective overall sentence was 3 years for Mr Lang.
Mr O'Brien, who appeared for Mr Britt in the sentencing proceedings, tendered a report from a forensic psychiatrist, Dr Christopher Bench. He diagnosed Mr Britt with attention deficit hyperactivity disorder and also said that Mr Britt "was suffering from depressive symptoms at the time of the index offences". Later in his report, Dr Bench said that, regarding Mr Britt's "mental health around the time of the index offences, it is likely that he would have met the diagnostic criteria for adjustment disorder with depressed mood." The psychiatrist noted that Mr Britt was "subjected to a number of significant stressors at the time, most notably revolving around his employment and financial straits." He noted that over the last six months, Mr Britt had seen a resolution of his depressive symptoms and he thought that "ongoing monitoring by a psychiatrist would be important for evaluation of further depressive episodes or the recurrence of his anxiety disorder" although "no other specific psychiatric treatment is currently indicated."
Mr O'Brien also tendered on behalf of his client a number of references which spoke very well of Mr Britt as an employee, as well as an individual. In particular, the referees spoke of a couple of significant events which had occurred in Mr Britt's life. A former partner of his sister, called Grant Odgers, became very close friends with Mr Britt. Tragically, Mr Odgers committed suicide and that had a significant impact on Mr Britt. His sister, Renae Britt, said that Mr Britt "took this news very hard". And then apparently 6 months after losing Mr Odgers, as his sister said, "our nephew Riley passed away". She observed that her brother "was faced with these raw emotions he had never felt before. All this death in our family took a huge toll on Jarrod." She herself noticed a change in her brother's personality and that "he became emotionally unstable, taking a lot of his frustration out on mum and dad." To his credit, Mr Britt asked his sister if she could help him seek professional help. She summarises her brother's predicament well in the following terms -
"Jarrod is not a bad person. He has good morals and I am so upset that Jarrod has done these terrible crimes. This is not like Jarrod at all. Yes, he has had some problems and issues that he has had to face, but nothing that is as serious as the charges he is facing at this time."
She clearly is prepared to support her brother.
Mr Britt's mother also provided a letter which indicated the fact that her son did not cope at all with the news of Grant Odgers' death and that he went into a deep depression with the death of the nephew as well. She says that her son "is not a lazy boy; he always makes an attempt to gain employment, even if the jobs only last several weeks." She says that he "does not believe in receiving unemployment benefit." She thought that Mr Britt "has been emotionally unstable for some time now and as his mother I feel that I have let him down by not seeking medical attention sooner." She noted that he had been diagnosed with "ADHD and is now taking medication." Both Mr Britt's mother and sister note regret at committing these crimes. Other referees noted that he has remorse about the crimes that he has committed and regard them as uncharacteristic.
Mr O'Brien called his client to give evidence. He is prepared to pay the compensation which has been assessed for the damage to the properties which they broke into. His share would be $9000.
His father and mother and sister and aunt were in court for his proceedings and his family is back here today. He referred to the impact which the death of those close to him had on him and that he was feeling particularly low when these offences were committed. However, to his credit, he went to see a Dr Spruce, a psychiatrist, a couple of months later. That was referred to in his report by Dr Bench.
He is presently in full time employment. He is working as a machine operator, bringing home between twelve and fifteen hundred dollars a week, and feels much better. He feels as though he is back on track. He accepts that it is his responsibility for the crime and does not try to blame anybody else. Cross-examined by Ms Wand for the prosecutor, he acknowledged that his lesson had been learned and that he had caught up with the co-offenders, Mr Reuter and Mr Lang, after he came back from Mount Isa where he had been working with his brothers, or at least one brother, and it was the impact of the news of the deaths in the family that brought him back to Sydney. In fact, he met Mr Lang only a week before the crimes. At the stage of the crimes he had been unemployed for some five months. He neither takes drugs nor drink, and is prepared, he confirmed, to pay the compensation.
Mr O'Brien pointed to Dr Bench's report which links his client's mental health with the commission of the offences, and drew my attention to the judgment of the Court of Criminal Appeal in R v Hemsley [2004] NSWCCA 228 and the impact which that can have on a sentencing judge. It may be relevant concerning the moral culpability of an offender, as well as whether an offender is an appropriate person for a judge to take into account general deterrence. A custodial sentence may weigh more heavily on a person with a mental health condition. I put some weight on those factors, but not very much, because it was really Mr Britt's emotional reaction to the tragic events in his family and his failure to cope which contributed more to the crimes, and the condition was diagnosed in retrospect. He was not diagnosed at the time. Nevertheless, I do take into account the later diagnosis by Dr Bench and that doctor saying it was probably current at the time.
I accept that Mr Britt was more of a follower and that Mr Lang was the driving force. I accept the references which he has received. I do accept, as Mr O'Brien realistically acknowledged, that the offences were aggravated by being in company; that there was a substantial loss; and that there was planning involving some hours. His record, though, on the other hand is almost negligible. He comes from a good and supportive family, and I regard his prospects of rehabilitation as being good. I regard it as unlikely that he will offend again. I also accept that he has been remorseful.
He has pleaded guilt at what Ms Wand agreed was the earliest opportunity and should receive a discount of some 25 per cent for his plea of guilty.
For the reasons I have just listed, I do not regard it as appropriate to impose the standard non-parole period. Mr O'Brien argued that there were four options in sentencing his client - a sentence of full time custody, a suspended sentence, a community service order and an intensive correction order. He said that the last would have the impact on his client of putting his job in jeopardy.
Ms Wand pointed to the damage to the premises committed in the course of the crimes. Although she submitted that the offences were above the middle of the range of objective seriousness - which may no longer be as significant a concept as previously as a result of the High Court's decision in Muldrock v The Queen (2011) 85 ALJR 1154; [2011] HCA 39 - as Mr O'Brien pointed out, Blanch J had found that the offences were below the middle of the range, and I would make the same finding.
Ms Wand pointed to the planning involved in advance, and acknowledged Mr Britt's remorse. She acknowledged that Mr Lang had the criminal record and was a more serious offender. She queried whether the mental health condition had contributed in a material way, and that is reflected in the observations which I have already made. She argued that the crimes warrant a sentence of imprisonment. She argued that a sentence involving a community service order would involve appellable error. I would agree with her in the sense that I would regard a community service order as too lenient a response two crimes, to each of which Parliament has attached a maximum of 20 years imprisonment, and a standard non-parole period of 5 years.
I regard a sentence of imprisonment as the only alternative. I regard an appropriate sentence for both crimes as being one of 2 ½ years. That takes into account that Mr Lang received a sentence of 3 years and Mr Britt's sentence should be lower. I am going to apply to the sentence of 2 ½ years the 25 per cent discount which Mr Britt is entitled to because he has pleaded guilty at the earliest available opportunity, thereby saving resources which would otherwise be devoted to his trial. That reduces the overall sentence to one of 22 months, or 1 year and 10 months. I propose to take the unusual course of imposing those sentences concurrently because, although there were two victims, they occurred very close in time.
In respect of the sentence, I do not regard an order suspending the sentence as appropriate because it is too serious an offence, but I do propose to make it the subject of an intensive corrections order.
HIS HONOUR: I will sentence you now, Mr Britt.
I am sentencing you to 22 months, that is, 1 year and 10 months imprisonment, but under section 7 of the Crimes (Sentencing Procedure) Act 1999, I make an intensive correction order directing that the sentence be served by way of intensive correction in the community.
HIS HONOUR: Have a seat, Mr Britt. No, hang on; I can't do that until I've got a report, an assessment.
OUTRAM: That's so, your Honour. If there's no report, that's so. Your Honour will have to stand it over for such a report.
HIS HONOUR: Yes. I can't do it.
OUTRAM: I don't know how long they take these days. I would expect something in the order of four to six weeks.
HIS HONOUR: That's right, isn't it, Mr Gabb?
GABB: I'm in your Honour's hands.
HIS HONOUR: I don't think I can-
OUTRAM: I was unaware that there wasn't one.
GABB: No, I wasn't aware.
HIS HONOUR: No, I should have been told that I can't - I mean, that option, which was canvassed by Mr O'Brien, that option was canvassed, but - I mean, I should have remembered myself, but nor was it drawn to my attention that I can't impose such an order without an assessment under section 67 of the Crimes (Sentencing Procedure) Act. I think I'm right.
OUTRAM: Yes.
HIS HONOUR: Mr Gabb?
GABB: To the best of my knowledge, your Honour, yes. I wasn't here for the sentencing submissions, unfortunately.
HIS HONOUR: No, I know you weren't.
OUTRAM: No, nor was I.
HIS HONOUR: No, you weren't.
OUTRAM: Your Honour has the option of standing the sentencing proceedings over part heard for that purpose.
HIS HONOUR: I'll have to do it, yes.
OUTRAM: I don't know where your Honour will be sitting in the next couple of months time.
HIS HONOUR: It's under section 69.
OUTRAM: It's 67(1)(b), I think, your Honour.
HIS HONOUR: That's right, and then 67(2), I have to have regard to; although 69 says before imposing, I may refer for assessment, 67(2) says that, in deciding whether or not to make an ICO, the Court is to have regard to the contents of a report. So I don't think I can sentence him without that.
OUTRAM: And your Honour needs to be satisfied that he's a suitable person, and that flows from the report.
HIS HONOUR: It flows from the report. I think you're right. All right, that's regrettable.
Mr Britt, do you understand? Let me explain. It was my - it is my intention to give you a gaol sentence of 22 months, but to let you serve it in the community. That means you go about your job and where you live and things like that, but the Corrective Services, or Probation and Parole, keep a very tight rein on you. And there are all sorts of conditions, they can come and check on you and stuff, and you have got to do a certain amount of voluntary work. It keeps you out of gaol, keeps you in the community, earning, all those things. But what we have all overlooked is that before I can do that, you have got to be assessed as suitable, and I have to have you assessed. So I am going to make, in a moment, an order for you to be assessed, and then I will have to ask you to come back to court.
HIS HONOUR: And I am going to be away. I could offer you Thursday 5 April. And it will be Sydney.
OUTRAM: Someone can appear, your Honour, for the Crown.
HIS HONOUR: All right. Mr Gabb?
GABB: Is it in Sydney, your Honour? Is that what you're telling us?
HIS HONOUR: It is in Sydney.
GABB: I'll just speak to my client, your Honour.
HIS HONOUR: Yes, thanks.
GABB: Suitable, your Honour.
Under section 69(1) of the Crimes (Sentencing Procedure) Act, I refer Mr Britt for assessment as to his suitability for intensive correction in the community.
HIS HONOUR: And I think that is a reference to the Commissioner for Corrective Services. Now, where does he go? What happens now?
OUTRAM: He reports to Probation and Parole, your Honour. They will do the appropriate paper work.
HIS HONOUR: All right. Where is your nearest--
OFFENDER: Lake Macquarie.
GABB: Lake Macquarie office, your Honour.
I direct Mr Britt to report to the Probation and Parole office at the Lake Macquarie District office on or before next Tuesday, 21 February 2012 by 5pm. So, Mr Britt, before next Tuesday at 5, between now and next Tuesday at 5, you have got to turn up for-
OUTRAM: Would your Honour make that 4?
HIS HONOUR: Four o'clock. You have got to turn up at the Lake Macquarie Probation - you have been there before, have you?
OFFENDER: Yeah, I've been there probably about three times.
HIS HONOUR: That is what I thought. You have got to turn up there, and do it sooner rather than later, and I have referred you for assessment for an intensive correction order.
OFFENDER: When they asses you, what's that, like--
HIS HONOUR: What do they do?
GABB: I'll explain to him, your Honour.
HIS HONOUR: Yes, Mr Gabb will explain to you. They take into account all sorts of things.
OFFENDER: Yep.
All right. Well, that is the order which I make in this case. You can come out of the dock. And you will come back on that date in April. And I stand over the sentence proceedings to Thursday 5 April 2012 before me at 10:00am in Sydney.
GABB: Bail to continue, your Honour.
OUTRAM: No objection to that, your Honour.
Bail is continued on the same conditions as presently fixed.
ADJOURNED TO THURSDAY 5 APRIL 2012 IN SYDNEY
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Decision last updated: 08 May 2012
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