R v Jordan

[2016] NSWDC 164

District Court

New South Wales

Medium Neutral Citation:	R v Jordan [2016] NSWDC 164
Hearing dates:	4 March 2016
Date of orders:	04 March 2016
Decision date:	04 March 2016
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	Impose an aggregate sentence consisting of a non-parole period of 2 years and a head sentence of 3½ years
Catchwords:	CRIMINAL LAW – Sentence – Form 1 – Inappropriate charge bargaining by DPP - Behavioral problems as a child - Poor role models - Aggravated enter dwelling house with intent to steal - Occupied premises - Steal from a dwelling house - enter inclosed lands.
Category:	Sentence
Parties:	The Crown Liam Jordan
Representation:	Solicitors: Director of Public Prosecutions Legal Aid Commission - Offender
File Number(s):	2015/189101

SENTENCE

1. HIS HONOUR: It is undeniable that a strong predictor of whether a particular person will commit crimes is whether that person’s parents had a history of offending. One might have hoped that a child seeing parents waste large parts of their lives in custody, parents who live out their lives measured in court dates, release dates, head sentences and non-parole periods, might mean that children of such parents do all they can to avoid following in the footsteps of those parents, but matters, of course, are not as easy at that. The upbringing a child has significant impacts on their behaviour, and a child who like Liam Jordan who appears for sentence today, was brought up by parents who demonstrated regular offending, who modelled regular drug use and who failed to set behavioural boundaries will often end up, as Mr Jordan has, before courts facing sentence which necessarily involves them serving sentences of imprisonment just like their parents did.

2. Not all of us have the same background, not all of us have the same opportunities in life and so in deciding the moral culpability of any particular offender it is important to understand the nature of that offender’s background.

3. When we talk about moral culpability we often consider questions of personal choice. To what extent has the offender chosen to commit these offences? Some people, people like Mr Jordan, have less ability to choose law abiding lifestyles than those who are brought up by parents who do not commit crimes, who do not use drugs and who do set proper behavioural boundaries.

4. I have started these remarks on sentence that way, because of the link between Mr Jordan’s background and what brings him before me today.

5. Problems started for Mr Jordan even before he was born. His mother was a drug addict and so when born he needed immediate treatment. His parents, he believed, loved him, but really set no effective boundaries apart from requiring that he have good manners. He was brought up by whichever parent happened not to be in custody at any particular time. His father was a drug addict too and served sentences of imprisonment on a regular basis. Eventually his mother abandoned the family and he was left to be brought up by his father.

6. At one stage he was taken into foster care. As I understand the psychologist’s report, tendered on behalf of Mr Jordan today, his foster parents did their best, but Mr Jordan’s behavioural problems were such that when his father got out from custody at one stage they did not stop Mr Jordan from leaving their care and returning to live with his father. He was about 14 years of age at that time, and after he left his foster carers he never returned to any formal schooling. His last education was thus when he was in year 9. But, of course, the inevitable occurred, his father was returned to custody after committing some other offence and Mr Jordan was forced to live on the streets. It is in that context that a lot of the matters on his criminal history must have occurred. He told the psychologist that a lot of that offending was simply a result of needing to steal to survive, to obtain food and the necessities of life.

7. He has a history of drug use, which is not surprising given his background, but has been able to abstain from time to time. It was one particular relapse that led to him committing the offences that I will now describe.

8. Mid-morning on a Saturday in June last year the offender broke into the home of a 46 year old woman. Whilst in the home he found that woman’s handbag, took it and stole it. In her handbag were a mobile phone and several bank keycards. A little while later she noticed her handbag was gone and reported the theft to police. A little while after he had stolen that handbag he was seen going through it in the backyard of another home. When he heard a nearby noise he appeared to be startled and ran away.

9. What I have just described has led to the offender pleading guilty at an early opportunity to an offence of aggravated enter dwelling house with intent to steal, the circumstance of aggravation being he either knew or was deemed known that the premises were occupied. Attached to that offence is the matter on the Form 1, stealing from a dwelling. That relates to the actual handbag that was stolen after Mr Jordan broke into the house intending to steal.

10. Ordinarily one might have expected to see a charge of aggravated break and enter and commit serious indictable offence, namely, of stealing. It is puzzling that the charges that the Crown has preferred against Mr Jordan have effectively split-up his offending into aggravated enter dwelling house with intent to steal, with the actual stealing on a Form 1. The explanation appears to be that by doing so the standard non-parole period is avoided. Such creative charge bargaining on behalf of the DPP does it no credit whatsoever. Crown Prosecutors, trial advocates and solicitors from the DPP should not obtain pleas of guilty at the cost of bringing discredit onto the criminal justice system by such creative charge bargaining.

11. There is another matter on the Form 1 too, and that is a matter of entering enclosed lands without lawful excuse, that, of course, relating to the time that the offender spent in someone else’s backyard going through the handbag he had stolen nearby.

12. Shortly after he ran off, as I have described earlier, he broke into other premises. He was observed by a witness to be in the backyard of a house in Glebe, to open a closed window and to climb inside. The eyewitness called police, who arrived while the accused was actually in the premises. He began climbing out the window in full view of police. He was challenged and ran away. Eventually he was caught, but denied any wrongdoing when interviewed by police.

13. Mr Kozanecki said that these offences were offences at the low end of the range of offences of that type. I do not agree. They are entirely normal, standard, middle of the range offences of break and enter with intent to steal or aggravated break and enter with intent to steal. Indeed, judges and magistrates see so many offences of this type that we tend to begin to regard them as normal, but that is to ignore the serious consequences of offences of the type I have just described. It is notorious that those who have the security of their homes broken are as a result more fearful, less confident, and, to put matter bluntly, less happy about their lives. What to people like Mr Jordan is a simple entry in a premises and the theft of a handbag is to the victim of such offences a very serious matter. Alarms are installed, bars are put on windows and people become less confident in their lives.

14. There are wider consequences as well, the community in general suffers through higher insurance premiums, all of us putting on extra security in our homes, and it is for these reasons that significant penalties are provided for the offences for which I must sentence Mr Jordan, 14 years for the aggravated form of the offence and ten years for the unaggravated form of the offence.

15. I mentioned before that the offender pleaded guilty. He did this at an early stage and so the sentence I impose upon him will be 25% less than it would otherwise have been. He has been in custody from the day of his arrest, the day he committed these offences, 27 June 2015. Not all of that pre-sentence custody was referrable to these matters. He did one month for an unrelated matter and so I will date the sentence of imprisonment, which Mr Kozanecki concedes I must impose upon his client, from 27 July 2015.

16. I mentioned Mr Jordan’s prior offending. He does have a lengthy record for one so young, but this is the first significant time he will spend in custody.

17. Not surprisingly perhaps, given his background, the psychologist describes him as being anxious, depressed and suffering from post-traumatic stress disorder. These are significant factors affecting Mr Jordan. Nevertheless it is appropriate for a significant level of general deterrence to be built into the sentence I will shortly announce.

18. The connection between Mr Jordan’s drug use and his offending is obvious. Indeed, he claims to have no memory of these offences, having consumed ice and then Xanax shortly before he committed the offences. That circumstance is of particular relevance when one looks at his prospects for rehabilitation. They are intricately bound up with the prospects of him ceasing to use drugs in the future. I should emphasise there is nothing to suggest that he has been using drugs since he went into custody. There are no disciplinary matters on his custodial history and no suggestion that he has failed any urine tests that he has been required to undergo. I note also the sentiments he expressed to the psychologist in which he expressed remorse for his conduct and empathy towards the victims of it.

19. Mr Kozanecki, I think I have already mentioned, concedes that imprisonment is appropriate and made no suggestion that that imprisonment would be other than fulltime imprisonment. He asked me to make a finding of special circumstances, which I will, based on the need for Mr Jordan to be assisted with his drug problems upon his release from custody. As I mentioned, if he can deal with his issues regarding drugs, the chances of him committing further offences in the future are significantly reduced. So it is thus not only in his interests, but also the community’s interests, that he be given the benefit of an extended period of supervision on parole.

20. Mr Kozanecki submitted that the appropriate sentence to impose upon his client was one which minimised his time in custody as way of minimising his exposure to other more significant criminals, which would simply perpetuate his exposure to poor role models, a situation which has existed for all of Mr Jordan’s relatively short life.

21. There also needs to be an element of personal deterrence. Mr Jordan needs to understand that if he continues to offend he will continue to go to gaol just as his parents did.

22. Of recent times his father has apparently turned the corner. It is now seven years since he served a custodial sentence and has had stable accommodation for five. That is very much to his credit and Mr Jordan is rightfully proud of his father for what he has achieved, but he has only achieved that at a very late stage of his life. Mr Jordan has the opportunity to achieve something similar at a much younger stage of his life. If he does his life will be better for it. I have done what I can to encourage Mr Jordan to make the decision upon his release from custody that he is not going to go back to gaol. I have done what I can to give him support which will assist him in that regard, but ultimately it is up to him. If he commits further offences I will send him to gaol and so will everyone else. If he does not his life will be better for it.

23. I will impose an aggregate sentence of imprisonment. I would have imposed on the aggravated break and enter with intent to steal a sentence of imprisonment of three years, and on the break and enter with intent to steal a sentence of imprisonment of two years. The aggregate sentence is one of consisting of a non-parole period of two years to date from 27 July 2015 and a head sentence of three half years. The non-parole period will expire on 26 July 2017, on which day Mr Jordan is eligible to be released to parole.

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Decision last updated: 09 August 2016