R v Lincoln (No 2)

[2018] NSWDC 356

District Court

New South Wales

Medium Neutral Citation:	R v Lincoln (No 2) [2018] NSWDC 356
Hearing dates:	26 October 2018
Date of orders:	26 October 2018
Decision date:	26 October 2018
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	Taking into account matters on a Form 1, the offender is sentenced to an aggregate term of imprisonment consisting of a head sentence of 4 years with a non-parole period of 2 years
Catchwords:	CRIMINAL LAW – Sentence – Form 1 – Formerly on s11 remand – Prospects of rehabilitation not realised – Genuine efforts made at rehabilitation – Break and enter – In company – Person present at time of offence - Dishonestly obtain money by deception
Cases Cited:	Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 R v Lincoln [2018] NSWDC 97
Category:	Sentence
Parties:	The Crown Bradley Lincoln
Representation:	Solicitors: Director of Public Prosecutions – The Crown Legal Aid Commission – The offender
File Number(s):	2017/55709

Judgment

1. HIS HONOUR: Way back in March this year Mr Lincoln first appeared before me for sentence. On that day I made some very brief remarks indicating what Mr Lincoln was to be sentenced for (R v Lincoln [2018] NSWDC 97). I referred to Mr Lincoln’s childhood of extreme hardship and disadvantage. I referred to the prospect that Mr Lincoln might be able to demonstrate rehabilitation having been accepted into a residential rehabilitation facility and, for reasons I then explained, I adjourned the matter to see whether Mr Lincoln would ultimately get the benefit of a s 11 remand to allow him to go into residential rehabilitation or, if he did not, to sentence him.

2. Since then Mr Lincoln has made efforts to rehabilitate himself but they have unfortunately not been entirely successful. Mr Lincoln’s desire to rehabilitate himself is, I am satisfied, genuine. He appears to me to be tired of the way he has lived his life to date and wants to do something about it. He accepts, however, that given his background and given his longstanding drug addiction the path to rehabilitation is not going to be easy and he needs assistance.

3. Since March he has entered a rehabilitation facility but was asked to leave for two reasons, one, he formed a relationship with a person there which was against the rules, but more importantly, he was using drugs. He has made other efforts to get back into a rehabilitation facility since then, entering a detox program for example but things have not been at all smooth. At one stage he was using heroin and indeed overdosed on two occasions leading to overnight admissions into hospital. On top of that Mr Lincoln has committed at least one offence of goods in custody.

4. So Mr Lincoln appears before me today as a person who has been unable to demonstrate rehabilitation. He has demonstrated a genuine desire, as I have already mentioned, to put his drug using days behind him but as is regrettably fairly commonplace he has been unable to do what he hoped to do.

5. I am to sentence Mr Lincoln today for two offences, an offence of aggravated break, enter and steal knowing that there was a person present and an offence of dishonestly obtaining property by deception. Those offences are related, the second offence flowing from the first because of the property that Mr Lincoln took from the premises.

6. The offence occurred on New Year’s Day 2017, or actually in the early hours of the following day, I should say. At about 8am on 2 January it was discovered that a break, enter and steal had been committed and that stolen from some premises were a number of things. CCTV footage nearby demonstrated the offender and an unknown male walking towards the premises and later driving away in a car which had been taken from the premises using the keys and remote control locking device to that vehicle.

7. The following day, 3 January, the offender used a Visa debit card which had been taken from the premises to purchase a number of items.

8. As a result the offender has faced charges, as I have mentioned of aggravated break, enter and steal, and through the use of the credit card a number of offences of dishonestly obtaining financial advantage by deception, most of those appearing on a Form 1 but one is to be the subject of a separate sentence.

9. I take into account that the serious indictable offence committed is one of stealing which is not as serious as some other forms of indictable offence but I do take into account also the circumstance of aggravation, that there were people inside, is quite serious. It is a matter of good fortune that the person who was in the premises was unaware of Mr Lincoln’s and his associate’s presence in the property whilst the offence was being committed. I also take into account that there could have been another circumstance of aggravation and that is that Mr Lincoln was in company.

10. He has a lengthy criminal history of offences of take and drive, goods in custody, break, enter and steal, and shoplifting. They are consistent with his longstanding drug addiction. His use of drugs began early in life. I earlier quoted some parts of a psychological report tendered when Mr Lincoln was first before me. I will not repeat what I quoted at para 2 of my earlier remarks but they clearly demonstrate that the Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 principles are of application here. As Mr Lincoln grew up he was exposed to poor influences, indeed criminal influences. There are few people that he knows who do not have criminal records. It is much harder for a person brought up in that situation to make the decision to avoid criminal behaviour than it is for those with a more prosocial upbringing. Of course that is not to say that everyone brought up as Mr Lincoln has been will go on to commit criminal offences. Mr Lincoln’s brother Brett is a perfect example of that. Mr Lincoln and his brother retain a relationship and Mr Lincoln hopes to work for his brother upon his release from custody.

11. Despite the efforts of everyone concerned, including Mr Lincoln himself, he has been unable to shake off and deal with the problems associated with his addiction to drugs. His prospects for the future must be regarded as guarded but there is hope. I have repeatedly in these remarks referred to Mr Lincoln’s genuine desire to put his drug using life behind him and with support, particularly with support of a kind available through residential rehabilitation, as Mr Lincoln ages he may eventually be able to make the decision to give up using drugs, for that reason I make a finding of special circumstances in his favour.

12. Mr Lincoln has done some time in custody referrable to these offences and some time in quasi-custody as well. I am grateful to the assistance of Mr Pace in providing a calculation to me of the appropriate commencement date taking into account both of those periods of custody and quasi‑custody.

13. I impose sentence as follows:

14. I have imposed an aggregate sentence. Were I not to have done so I have imposed sentences as follows:

15. For the offence of aggravated break, enter and steal a period of imprisonment of four years with a two year non-parole period.

16. For the offence of dishonestly obtain property by deception a period of imprisonment of nine months.

17. I instead I impose an aggregate sentence consisting of a head sentence of four years, and a non-parole period of two years to have commenced on 26 June 2017. The non-parole period will expire on 25 June 2019 which is the first day on which Mr Lincoln will be eligible for parole.

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Decision last updated: 10 April 2019