R v Jason Wayne Nicholas

[2009] NSWDC 365

CITATION:	R v Jason Wayne NICHOLAS [2009] NSWDC 365
HEARING DATE(S):	11 December 2009
JUDGMENT DATE:	11 December 2009
JURISDICTION:	District Court Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	In relation to the s 12 bonds imposed on 23 February 2007 revoke the order that they be suspended. Those sentences should therefore be served by way of full-time imprisonment to commence on 14 May 2009. In each case they will be fixed terms. For the offence of break enter and steal of 10 November 2008, the offender is sentenced to imprisonment for a fixed term of two years to date from 14 May 2010. For the offence of taking and detaining for an advantage, the offender is sentenced to imprisonment for a fixed term to date from 14 May 2011. For the offence of aggravated stealing and breaking out, I set a non-parole period of two and a half years to commence on 14 May 2012. It will expire on 13 November 2014. I set on that last matter a head sentence of six years. The overall sentence is thus a non-parole period of five and a half years with a head sentence of nine years. The offender is eligible to be released to parole on 13 November 2014.
CATCHWORDS:	CRIMINAL LAW - Sentence - Form 1 - Taking and detaining for advantage - Aggravated stealing and breaking out - Breach s 11 bond - Occupied premises - Paranoid schizophrenia - Standard non parole period - Accumulation
PARTIES:	The Crown Jason Wayne Nicholas
FILE NUMBER(S):	DC 2009/11/0862
SOLICITORS:	Director of Public Prosecutions Aboriginal Legal Services - Offender

SENTENCE

1 HIS HONOUR: Jason Nicholas first came before me in April 2006. He pleaded guilty to a number of offences and I was asked to take into account a number of other offences on a Form 1. Those offences were very serious. However, there were indications that Mr Nicholas was able to rehabilitate himself notwithstanding the seriousness of his offending. I gave him the benefit of a s 11 remand. He came back before me in February 2007. He had done well on the remand and he committed no further offences and so I acceded to the submission made on his behalf that whilst I should sentence Mr Nicholas to imprisonment, I should suspend those sentences. Things were looking good in February 2007 but they went downhill with the result that not only did Mr Nicholas breach the bond but he committed a number of further offences. In particular he committed two very serious offences on 24 March 2009. Notwithstanding the prospects of the offender’s rehabilitation in the future and notwithstanding his tragic background, his behaviour on 24 March 2009 was of such serious criminality that a lengthy sentence must necessarily be imposed.

2 When I gave Mr Nicholas the benefit of suspending the sentence of imprisonment I imposed in February 2007, I explained to him that if he committed further offences he would go to gaol. Notwithstanding that clear warning the offender has committed further offences. He has also failed to comply with other conditions of the bond. A breach report in November 2008 noted that the offender’s whereabouts were unknown and that whilst initially he had participated in what the Probation and Parole Service required he had failed to report in more recent times and failed to attend sessions arranged for him and used drugs. The breach report also notes that Mr Nicholas was convicted of an offence of assault occasioning actual bodily harm. That matter is not before me and is awaiting sentence in the Local Court. The new offences are one of break enter and steal, one of taking or detain a person with intent to obtain an advantage and one of aggravated break enter and steal. That last matter carries with it a standard non-parole period of five years and a maximum penalty of twenty years. The standard non-parole period is not of direct application because the offender pleaded guilty to that offence. Standard non-parole periods are also very difficult to apply where a sentence must necessarily be accumulated on other sentences. Despite those factors, it is clear that by setting a standard non-parole period for this offence, the legislature was expecting that sentences for such offences should increase.

3 The offender committed the first of his new offences on 10 November 2008. He has no recollection of committing that offence. We do know that on that day a householder left her unit locking the doors at about one o’clock in the afternoon. She locked not only all the windows and doors but a wrought iron gate at the front door and turned on the alarm. When she returned a few hours later she discovered the alarm system had been activated. When she went to the living area she saw that a glass sliding door had been smashed. When she went upstairs she saw what appeared to be blood smeared on the hallway wall. Of course it was this blood that later enabled police to identify Mr Nicholas as the person responsible for this offence. He had broken into the premises, taken the computer owned by the victim and rifled through other parts of the house looking for things to steal. A laptop was not recovered. That offence is a distressingly common offence. The offender cannot explain why he committed it because he has no recollection of doing so. The agreed facts in that matter note that the victim states that the offence made her feel violated and insecure. I have no doubt at all that that is the case. I have no doubt that the consequences for the victim extend far beyond simply having to pay the excess on her laptop which was insured and having to pay to have her doors repaired.

4 It says something about the seriousness of the offender’s other offence that the offence of 10 November 2008 pales into insignificance compared to what the offender did in March 2009. On that day the offender went to premises at Centennial Park. A document headed “Agreed Facts” was tendered to me but it is clear that the facts are not agreed at all in one particular area. The document says that the victim had left a door open, a door that faces onto the street had been left open but the offender recalls that the door was closed but unlocked. It is difficult to resolve the dispute but I have the evidence of the offender that the door was closed. In those circumstances I am prepared to proceed on the basis that the offender opened and closed an unlocked door. The relevance of that is that it affects the likelihood that when the offender went into the premises he was aware that they were occupied. Indeed they were. But the offender claims that he did not think that they were when he went inside. Ultimately not too much can be made of this in the offender’s favour because of what he did once he realised that in fact the premises were occupied. The victim of the offence, a woman, was standing next to her desk in a study which adjoined the bedroom. She saw the offender, he had a towel around his head exposing only his eyes. Not surprisingly the victim started to scream and the offender came at her saying “Just do what I say”. She tried to escape but the offender grabbed her and pushed her onto the floor. This is the commencement of the offence of detaining the victim. Not satisfied with having pushed her onto the ground he then hit her with an open hand twice. Of course the victim was very scared and worried that he was going to become even more violent. The offender pushed her again, pushed her towards the main bedroom. The victim quite understandably thought that she was about to be raped. She said “You can have anything, just don't hurt me”. He then told her to open a safe, that safe being located inside a cupboard on the floor in the bedroom. Because of her terror, she was shaking and scared and was unable to open the safe getting the code wrong on a number of occasions. The offender was displeased by this turn of events and said to her “This is your last fucking time because next time I am going to hurt you”. Of course statements such as that only added to the terror which the victim was no doubt already experiencing. She asked him to wait a few seconds. At this stage the telephone rang and the offender said “You called the fucking police”. Thankfully the phone stopped ringing. The victim then gave the offender the code and he tried to open the safe. He too was shaking and could not do so. Eventually he said “I’m going to go” and stood up and ran out of the room saying to the victim “You let me go”. She said “Well then just run. Run”. On the way out, he grabbed her handbag. It contained cash, personal cards of course and the handbag itself was a valuable one. When police and ambulance officers arrived at the premises they discovered that the victim was extremely upset and distressed. Quite understandably so. They also discovered that the offender had left one of his fingerprints behind.

5 Of course there is the substantial overlap between the criminality involved in taking and detaining the victim and the aggravated stealing and breaking out. And some of the factors that I have referred to such as the assault upon the victim aggravate both offences. Of course I have to be very careful not to double count circumstances of aggravation such as those. It will be clear when I announce the sentences of substantial overlap in the sentences for those two matters.

6 I believe that I referred earlier to the offender’s tragic background. It is difficult to understand how someone could be as badly treated as the offender was. He has had setbacks, repeated setbacks throughout his life. They began very young. He was hit by a car when he was two years old and his maternal aunt who wrote a letter which was tendered to me today said that she never again saw the bright little boy that the offender was before the accident. He had learning difficulties throughout school. He was told that his father was dead although in truth he was in gaol serving a life sentence for murder. He lived with his mother for the first eight years of his life but she was an alcoholic and had abusive boyfriends and so the offender ran away and went to live with his maternal aunt. However, he missed his mother and went back to live with her. This was a mistake as there he was molested and abused by another of his mother’s boyfriends. At the age of thirteen he learnt for the first time that his father was not in fact dead but in gaol. He decided he would like to visit his father and so he arranged with a woman to take him to the prison so that he could meet his father for the first time. The offender was sadly disappointed by his father’s reaction. The offender told me that his father was more interested in the woman who had taken him to the gaol than he was in his son. On his father’s release from custody, he had more contact with the offender but that too ended in tragedy. The offender was attempting to stop his father using drugs but he was unsuccessful, his father eventually dying of a drug overdose. That was yet another setback in the offender’s life which he says was a significant factor in him relapsing and starting to use drugs again.

7 So far I have referred to external tragedies in the offender’s life but there are other more internal difficulties that he faces as well. He suffers from a very significant illness, paranoid schizophrenia. Although at one level he appreciates that he is mentally ill and that he needs to take his medication, as with many offenders, and many people with mental illness, he does not like taking his medication and wants to be normal. He is also concerned about the side effects of the medication. He told me, and there is a reference to it in the material before me, for example that he had to have operations on his chest to overcome some of the side effects of the medication. What led to him declining to take his medication most recently was that he saw something on website saying that there had been a class action commenced by users of the medication because it was sending people blind.

8 The circumstances of the three most recent offences too, also demonstrate a causal nexus between his offending and his mental illness, not only because of his drug and alcohol problem but because of voices that the offender hears which are impressing upon him the urgency to pay his outstanding drug debts. He may well have had drug debts at the time but his mental illness meant that he was much less able than a person who did not hear voices to reason about the consequences of what he was doing.

9 The offender expressed his remorse in particular in relation to the offence involving the woman at Centennial Park. It particularly affected him because as he was growing up he saw his mother abused. I accept that the offender is genuine in what he says about his attitude towards his offending.

10 The standard non-parole period offence, that is aggravated steal and then break out, is objectively above the middle of the range of objective seriousness although as I mentioned earlier, some of the matters that aggravate that offence are also aggravating circumstances of the detaining offence. That is not to underestimate the seriousness of his conduct. Not only was there someone home at the time, but once the offender realised that fact he did not run away immediately but instead took advantage of the fact that the victim was there in order to have her open the safe. He needed her to open the safe for him and that is why he detained her.

11 Were it not for the offender’s tragic background, I would have imposed much more significant sentences indeed. Not all of us have the same ability to reason about the rightfulness and wrongfulness of our behaviour. The offender is much less able than others to do that because of his background and because of his mental illness. On the other hand, the offender was nevertheless still very much aware that his behaviour was seriously criminal. Because of his mental illness the principles of general deterrence have less of a role to play but the offender must nevertheless be personally deterred from future misconduct of any kind and certainly misconduct of this kind. It is also important to bear in mind that the offender was able to at one stage to lead a law abiding lifestyle in that period leading up to February 2007 and so it cannot be said that there are no prospects of rehabilitation in the future. I will do what I can to assist the offender’s rehabilitation by making a finding of special circumstances. I have thus reduced the effective non-parole period from what I would otherwise have imposed. It remains the case however that a lengthy non-parole period is required and the effective non-parole period I will shortly announce is the least that I consider properly reflects the objective gravity of the offender’s conduct. The sentences have all also been reduced by twenty-five percent to reflect the offender’s early pleas of guilty.

12 In relation to the s 12 bonds imposed on 23 February 2007, I revoke the order that they be suspended. Those sentences should therefore be served by way of full-time imprisonment to commence on 14 May 2009. In each case they will be fixed terms because of other sentences I must impose. For the offence of break enter and steal of 10 November 2008, the offender is sentenced to imprisonment. I set a fixed term of two years to date from 14 May 2010. For the offence of taking and detaining for an advantage, the offender is sentenced to imprisonment. I set a period of three years fixed term to date from 14 May 2011. For the offence of aggravated stealing and breaking out, I set a non-parole period of two and a half years to commence on 14 May 2012. It will expire on 13 November 2014. I set on that last matter a head sentence of six years. The overall sentence is thus a non-parole period of five and a half years with a head sentence of nine years. The offender is eligible to be released to parole on 13 November 2014.

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