R v Jason Wayne NICHOLAS

[2006] NSWDC 149

CITATION:	R v Jason Wayne NICHOLAS [2006] NSWDC 149
HEARING DATE(S):	21/04/2006
JUDGMENT DATE:	21 April 2006
EX TEMPORE JUDGMENT DATE:	04/24/2006
JUDGMENT OF:	Berman SC DCJ
DECISION:	Remand unders s11 Crimes (Sentencing Procedure) Act
CATCHWORDS:	Criminal Law - Sentence - Aggravated Break Enter and Steal
LEGISLATION CITED:	Crimes Act 1900] s 11 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	The Queen v De Simoni (1981) 147 CLR 383
PARTIES:	Crown Jason Wayne Nicholas
FILE NUMBER(S):	03/11/1244; 04/11/0303; 05/11/0127; 05/11/0431; 05/11/0432
COUNSEL:	R Wilson (Offender)
SOLICITORS:	NSW DPP Sydney Regional Aboriginal Corporation Legal Service (Nicholas)

SENTENCE

1 HIS HONOUR: Jason Wayne Nicholas pleaded guilty earlier to an indictment containing three counts. One was an aggravated break, enter and steal, one was an offence of break, enter and steal, and a third was another offence of break, enter and steal. The circumstances of aggravation in the first case was that Mr Nicholas was in company. I note from the statement of facts that he was also in company in relation to the second matter but, as the Crown has very properly pointed out, I should ignore that fact because to do otherwise would be to breach the rule in The Queen v De Simoni (1981) 147 CLR 383.

2 In view of the course that I intend taking, I will not set out the facts which led to those offences being committed. They were obviously serious offences, aggravated by the circumstance that in each case Mr Nicholas was on conditional liberty.

3 There are also form 1 matters attached to the second and third counts.

4 At the outset of the proceedings today Mr Wilson, who appears for Mr Nicholas, indicated that it was to be his application that I should deal with the matter by way of s 11 of the Crimes (Sentencing Procedure) Act. The Crown, in its written submissions, initially opposed that order but, having heard the evidence, particularly the evidence from Mr Nicholas himself, the Crown, quite fairly and properly, conceded that he no longer opposed the making of the order.

5 The reasons that the Crown has changed his mind and the reasons that I will grant the application made by Mr Wilson are that these offences were committed at a time when Mr Nicholas was suffering a significant mental illness. He suffers from schizophrenia but, as is relatively common, initially denied to himself that he had that mental illness and was thus unreliable in taking the medication that had been prescribed for him. Indeed, such was the state of Mr Nicholas’ mental illness that he had earlier been found unfit to be tried for some of the offences to which he has now pleaded guilty. That situation has now resolved itself and he was found fit to be tried earlier, after which he entered those pleas of guilty I have spoken about.

6 Dr Neilssen, who saw Mr Nicholas on two occasions, was able to compare how he first appeared to how he appeared when he last saw him on 25 October last year. It is clear that there has been a significant change. Dr Neilssen reports that when the offender was committing the current offences his abnormal mental state arising from exacerbations of mental illness was likely to have resulted in a significant impairment in his perception of events, his capacity to judge right from wrong, and his ability to control his actions.

7 This is a case where there is more than just potential for Mr Nicholas’ rehabilitation. There is solid evidence to suggest the likelihood that Mr Nicholas will be able to overcome his drug addiction and will continue taking the medication prescribed to him for his schizophrenia. Much has already been done by Mr Nicholas, with the help of others. He has given up both Methadone and cigarettes for just a couple of days short of a year. He, as I have mentioned a couple of times, is now compliant with his medication. He understands that he suffers from schizophrenia. He recognises the need for him to participate in further rehabilitation in order to build upon what has already been achieved.

8 One of the reasons that s 11 remands are granted is so that an offender’s prospects for rehabilitation can be better assessed. This is one such case. Ultimately the purpose of the criminal law is to protect society and, more importantly, the members of society from harm. Often the criminal law achieves that purpose by imposing deterrent sentences on the basis that others who may be tempted to commit criminal offences will see that, if they do so, they will be significantly punished. However, the criminal law also recognise other ways in which society and its members can be avoided; in particular, through the rehabilitation of offenders.

9 For that reason, as the Court of Criminal Appeal has recognised on many occasions, to say that the criminal law exists to protect society is not to say that deterrent sentences must always be imposed. If the criminal law is able to respond in a way which promotes an offender’s rehabilitation and which achieves that, such that he or she no longer commits offences, then the protection of society is enhanced in that way. For those reasons, it is important that where rehabilitation can be achieved and where there are good prospects of rehabilitation, the criminal law should not respond to the commission of criminal offences by automatically imposing a harsh punishment.

10 The offender has been assessed as being suitable to enter the assessment phase of the Salvation Army Lake Macquarie Recovery Services Centre programme. Should he be accepted into that programme, he will undergo a ten month fulltime residential rehabilitation programme.

11 I propose to remand Mr Nicholas under s 11 of the Crimes (Sentencing Procedure) Act in the event that he is found to be an appropriate person to enter the fulltime rehabilitation programme.

12 For the purposes of assessing Mr Nicholas’ capacity and prospects for rehabilitation, I adjourn this matter to 23 February 2007.

13 I grant bail to Mr Nicholas in the meantime pursuant to these conditions. He is not to be released from custody until written confirmation of the availability of a bed in the Salvation Army Lake Macquarie Recovery Services Centre programme is faxed or otherwise provided to the correctional centre from which Mr Nicholas is to be released, and a copy of that document is faxed or otherwise provided to the solicitor in charge of this matter at the Office of the Director of Public Prosecutions.

14 Secondly, he is not to be released from custody except into the custody of his uncle Ian Nicholas, with whom he is to travel directly to the Lake Macquarie Recovery Services Centre.

15 Thirdly, he is to remain at, live at and participate in the programme at the Centre until completion of the rehabilitation programme.

16 Fourthly, he is to obey all reasonable directions of staff at the Lake Macquarie Recovery Services Centre.

17 Failure to attend or remain at the centre or participate in the programmes will be regarded as a breach of this bail, upon which bail is immediately revoked and Mr Nicholas is to be arrested.

18 It is a further condition of bail that should Mr Nicholas be discharged from the programme for any reason whatsoever, bail is immediately revoked and he is to be arrested.

19 The matter is also to be listed before me on 19 May at 2pm in order to confirm that Mr Nicholas has been accepted into the treatment phase of the programme. In the event that Mr Nicholas is assessed as being suitable to enter the treatment phase, his attendance on 19 May is excused. In the event that he is determined to be suitable, I will merely note that fact on 19 May and will make no other order.

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