R v Joshua Stephen TATE

[2008] NSWDC 331

CITATION:	R v Joshua Stephen TATE [2008] NSWDC 331
HEARING DATE(S):	26 September 2008 12 December 2008 17 December 2008
JUDGMENT DATE:	17 December 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	Sentenced to imprisonment with an effective overall sentence consisting of 2 years imprisonment with a 3 year and 3 month non-parole period.
CATCHWORDS:	Criminal law - Sentence - Form 1 - Aggravated break enter and steal - In company
CASES CITED:	R v Ponfield (1999) 48 NSWLR 327
PARTIES:	The Crown Joshua Stephen Tate
FILE NUMBER(S):	DC 08/11/0471
COUNSEL:	S Torpey (Offender)
SOLICITORS:	NSW DPP Legal Aid Commission

SENTENCE

1 HIS HONOUR: Joshua Tate appears for sentence today on two separate offences of break enter and steal. When I sentence him for the first of those committed on 3 October 2006, he asks that I take into account a number of other matters also of aggravated break enter and steal. They appear on a Form 1. The circumstance of aggravation of each of the two offences on the indictment and all of the offences on the Form 1 is that the offender was in company at the time he committed these offences.

2 These aggravated break enter and steal offences carry with them a standard non-parole period of five years. Of course given the circumstance that the offender pleaded guilty the standard non-parole period is not of direct application but it remains as an important guidepost which I should bear in mind when I assess the appropriate sentence for each of the offences.

3 The fact that aggravated break enter and steal offences appear in a list of matters carrying a standard non-parole period suggests that Parliament was concerned to ensure that those who commit offences of this kind are adequately punished. There is the unfortunate problem that because offences such as this have become so commonplace that their perceived seriousness is reduced. For years the court of Criminal Appeal has been emphasising the seriousness of offences such as these and the consequences for the community generally of their regular commission. Those are matters I will also bear in mind when I formulate the appropriate sentences.

4 The offender, who was working, was living with two mates who were not. For reasons which are not entirely clear, he and his co-offenders found themselves in the early hours of 3 October 2006 at the Scone Race Club. The club was to hold a race meeting a few days later and so the club had brought in a lot of extra alcohol. The offender and his two mates decided that they would break into the club and steal a lot of the property inside it. It was not the offender’s ute so he does not know what the jemmy bar was doing in the back of the ute but that was what was used to break the lock on the club door. Once inside they were able to remove a large quantity of alcohol. They also took a television and moved, and so technically stole, another one. There is some difference between the Crown and the accused as to precisely what was taken but there is no doubt that there was a large quantity of alcohol stolen. Taking into account the alcohol and the two televisions, the value of the property was in the order of $11,000. Fortunately the offender left behind one of his thumb prints and so he was soon shown to be one of those involved.

5 It was said that this offence was not a planned one. The offender gave evidence and there is nothing to contradict him that he and his mates went out to do doughnuts rather than going out to commit this offence. On the other hand it must also be recalled that they took so much stuff that it took them two trips to take the booty away from the club and get it back to their home. So whilst perhaps the initial breaking and entering was not planned, the stealing was as it required the transport of a large quantity of alcohol over two separate trips. A lot of that was given away and some of it was drunk but when police went to the accused’s premises later on and took photographs of the alcohol that was left, it was apparent that stealing that quantity of alcohol was a significant endeavour,

6 Whatever can be said about the spur of the moment decision to commit the offence on the Scone Race Club, the same cannot be said about the other offences. It was not too long before the offender committed the first of his offences at the Scone TAFE. He and his two mates broke into the building by smashing a window and from there they took a computer system including a printer. The system was valued at $2,500 and the damage was assessed at $1,600. That offence is the first appearing on the Form 1.

7 Next the offenders turned their attentions to the Scone Soccer Club. To get in, they had to remove a section of the roof and knock a hole through the plaster ceiling. Once there they stole soccer balls, a gas cylinder, three boxes of potato chips, some Mars Bars, Wagon Wheels, and other lollies. The property stolen was not greatly valuable, $300. Presumably those who conducted their sporting activities at the Scone Soccer Club were somewhat disappointed to discover that someone living in their community would do what the offender and his mates did. What they were going to do with eighteen soccer balls is a bit of a mystery.

8 One of the matters to be taken into account in assessing the seriousness of an offence of break enter and steal, is according to the R v Ponfield48 NSWLR 327 guideline judgment, whether there were repeat entries into the same premises. I mention that factor now because on 24 October the offender and his mates were again at the Scone TAFE. This time they had to smash a hole in a gyprock wall. Once inside they stole a large amount of electrical equipment, two data projectors, a laptop computer, two digital cameras and a video camera. The items were valued at about $9,000 and the cost of the damage was about $3,500.

9 It is important to note at this stage that what they were doing was to steal valuable education equipment. It is not a case that the only people who suffered were one or two people who owned the TAFE premises. All of those who were educated at the TAFE who needed that equipment would have suffered as a result of the offenders’ misconduct. On the same night as going to the TAFE the offenders also went to a storage container at the rear of a shop. Using bolt cutters they cut five steel padlocks and from the storage container they stole a number of items suitable for giving as gifts. They were not terribly valuable, about $300, and the cost of the damage was $500. That offence also appears on the Form 1.

10 The same night as doing the TAFE and the storage container, the offenders went to the local Scone Target store. They got inside by removing a roof panel and they took from both the store and a container outside, a large number of video game consoles, a large number of games, DVDs, and other valuable electrical equipment. These items were valued at about $6,000. Once again they caused damage in the order of $1,000.

11 All of the property, apart from the alcohol which as I mentioned was either given away or drunk, was kept in the offender’s premises. Police went there on 25 October and discovered the proceeds of the various offences.

12 The offender was much less than frank with police, providing a false alibi. He lied to them saying that he was the rightful owner of some of the items identified as being stolen. What eventually led to the offender being detected was that one of his co-offenders dobbed him in, presumably once the co-offender was told that the offender was blaming him. Then the alibis were investigated and it was shown that they were false. There was a statement from a former girlfriend of the offender to whom he had made some admissions. And of course there was the fingerprint that I mentioned found at the Scone Race Club. Given this accumulation of evidence against him, it is not surprising that eventually the offender pleaded guilty. It was not a plea of guilty entered at the first opportunity and indeed was only entered after efforts to mislead the police had failed. Nevertheless it was not a late plea either and I will discount the sentence I would otherwise have imposed, that is the overall sentence on these two matters by nine months to reflect the plea of guilty and when it was entered.

13 The offender, is like most people in the community, a person who is capable of being kind and doing good works. References tendered on his behalf suggest that that is the case. There are very few people in the community who are not able to say that they have done some kindness to a neighbour or a family member in the past. Nevertheless despite such references being commonplace I will take into account that there is a lot to be said in favour of the offender. The fact that he was working at the time of these offences is an important matter.

14 The offender has only one matter on his criminal history which post-dates these offences, an offence of goods in custody. The most relevant aspect of that offence is the response of the offender to the bond that he was put on for that offence. The pre-sentence report tendered before me today notes that although the offences for which I must sentence him occurred before the offence for which he was put on a bond and thus they are not a breach of that bond. Due to his poor response to supervision by the Probation and Parole Service breach action had been instigated.

15 The offender told the author of the Probation and Parol report that he had a normal upbringing and had a close relationship with his parents. There is clearly a possibility that the offender’s involvement in these matters was that he was dragged into them by the other two offenders but it would be exaggerating matters considerably from the material before me to say that he was a reluctant participant. There is no suggestion at all as to who the ringleader was and as to whose suggestion it was to commit the offences and on the material before me all three of them are equally culpable.

16 The offender reported being bullied in his early school years and at one stage there was thought to be a problem with ADHD symptoms. He was assessed by a psychiatrist in 2002 and found to have mild ADHD.

17 There are prospects for the future, and prospects for the offender’s rehabilitation. He presents in the witness box as a young man who is going to make efforts to avoid further offending in the future although that is difficult to reconcile with his response to the Probation and Parole Service attempts at supervising him. I cannot find that his prospects of rehabilitation are good or that he is unlikely to re-offend. Perhaps the most important thing in considering the likelihood that he will offend in the future is the deterrent nature of the sentence which I will shortly impose upon him. He accurately said that gaol is a place where the worst type of people is to be found. Gaols are truthfully terrible places and although that aspect of incarceration is not a purpose of incarceration, it cannot be denied that one of the matters which will exercise the offender’s mind in the future when he considers whether to commit further offences are the prospects of returning to such a terrible place.

18 I am required to assess the objective gravity of these two offences on the indictment and in particular where they appear in the range of objective seriousness. I consider that both of them are slightly below the middle of the range. I take into account that the offence of break enter and commit an indictable offence can be committed by the commission of other forms of indictable offences other than stealing, that the premises broken into were not residential premises and there was no prospect of anyone being at home at the time. On the other hand as I mentioned, the quantity of property involved was considerable in relation to the first count and involved the educational equipment of the community in the second count. For those reasons I am unable to find that as Mr Torpey suggested, the objective gravity of these matters was well below the middle of the range.

19 Mr Torpey referred to the conditions of bail the offender has been on until he was put into custody on 26 September 2008. He had to report daily and was subject to a curfew. As I understood the law, those conditions of bail were not such that they would affect in any way the sentence to be imposed upon the offender but Mr Torpey referred me to sentences of the former CJ at common law where reporting and a curfew were taken into account albeit in a relatively minor way. I will take therefore the conditions of bail into account but they are one of a large number of factors affecting the appropriate sentence to be imposed.

20 The offender is eligible according to the Probation and Parole Service for periodic detention but given the length of the sentence that I will impose upon him, periodic detention is not an option.

21 These were all offences committed against the community. The Form 1 matters suggest that there needs to be a longer sentence on count 1 to reflect the need for retribution and personal deterrence, the retribution being particularly appropriate given the number of offences and the fact that as I have just said, they were committed with the community at large as their victims. Because of the Form 1 offences, the sentence on the first count will be longer than the sentence on the second.

22 For the first count, the offender is sentenced to imprisonment. I set a non-parole period of eighteen months to date from 26 September 2008. I set a total sentence on that count of three years.

23 For count 2 on the indictment the offender is sentenced to imprisonment with a non-parole period of one year to date from 26 September 2009 and to expire on 25 September 2010 and an overall sentence of two years three months on count 2. Which means I think that there is an overall period of imprisonment of two years with a three year three month non-parole period.

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