R v Lynne Maree THURLOW

[2009] NSWDC 207

CITATION:	R v Lynne Maree THURLOW [2009] NSWDC 207
HEARING DATE(S):	13 March 2009
JUDGMENT DATE:	13 March 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	For the offence of aggravated break enter and steal the offender is sentenced to imprisonment. I set a non-parole period of eighteen months with a head sentence of two and a half years. For the offence of possessing house breaking implements the offender is sentenced to imprisonment. I set a fixed term of six months, that is a fixed term because of the other sentence. I order that both sentences are to be served by way of periodic detention
CATCHWORDS:	Criminal Law - Sentence - Aggravated break, enter and steal - Possess house breaking implements - Middle of the range of objective seriousness
PARTIES:	The Crown Lynne Maree Thurlow
FILE NUMBER(S):	DC 2008/11/1016
SOLICITORS:	NSW DPP Legal Aid Commission

SENTENCE

1 HIS HONOUR: Lynne Maree Thurlow appears for sentence today on two serious offences. They are related to each other. The first and most serious is an offence of aggravated break enter and steal. The second offence is one of possessing house breaking implements. The house breaking implements were used as part of the aggravated break enter and steal offence, so in view of that overlap she will receive no extra punishment because of the housebreaking implements matter.

2 On 18 June Ms Thurlow and her de facto husband, Mr Boyd, went out fishing. They had an argument and Mr Boyd walked off. Ms Thurlow was then taken, some time later, by a friend of Mr Boyd’s called Chris, to where Mr Boyd was. He was in fact near or at a public school in Balmain East. When they got there Ms Thurlow said she needed to use the toilet, therefore she says Mr Boyd helped her climb over the fence into the school. She used the toilet and when she came out she found that Mr Boyd had come up with the idea of breaking into one of the classrooms and stealing some electrical equipment inside. I say at once that this is a rather different version to that given by Mr Boyd when I sentenced him last year. His evidence was that the idea to break into the school did not come up after he had helped Ms Thurlow across the fence in order to use the toilet. His evidence was that there was much more forethought and planning. However that evidence has not been admitted on the sentence proceedings. Ms Thurlow’s evidence as to the circumstances in which the offence was committed is uncontested and I will therefore sentence her on the basis of the evidence that she gave rather than the evidence that Mr Boyd gave earlier.

3 In any case, returning to the narrative of what occurred, she and Mr Boyd did break into a classroom. They took a large flat screen television and a VCR. In breaking in they had obviously set off an alarm because as they were carrying the TV and VCR away they noticed police who had attended at the school. They tried to run away. Mr Boyd was more successful than Ms Thurlow. Ms Thurlow climbed over a fence, it was 1.8 metres high but on the far side of it the ground dropped away. She landed on a footpath that was about two and a half metres below. She broke both her knees and bears the consequences of those injuries to this day. Some might think it is poetic justice that in the course of committing an offence such as this the offender was injured. In any case it is, I am satisfied, a form of extra curial punishment that the offender has suffered. I will return to the consequences for her in a little while.

4 Quite clearly Ms Thurlow was unable to run further after she had broken her knees. She was arrested, and said to police who arrested her that they broke in because they were desperate and took a TV and a DVD player. She also admitted that she had a bag with tools in it which she had dropped. She was taken to hospital where she spent seven weeks before being released. She has had a number of operations and will require two more operations in the future. There is some contradictory evidence as to the extent of her recovery from her injuries but even on the most favourable view, that is even on the view suggesting that Ms Thurlow has recovered to the stage where she is able to walk pain free, that being the report of Dr Tan, there is still the question of further operations that are required. Even if she has made a full recovery she has endured much already as a result of the injuries to her knees caused when she was running away from police.

5 As I said when sentencing Mr Boyd this is an offence in the middle of the range of objective seriousness. I referred when sentencing Mr Boyd to the reasons that that is so. I placed particular emphasis on the fact that an educational institution was the target of the offender’s crime. Fortunately the TV and VCR were recovered, they were re-installed a few days later. The finding that this is an offence in the middle of the range of objective seriousness is of course related to the fact that the aggravated break enter and steal offence carries with it a standard non-parole period of five years. That standard non-parole period is not of direct application because of the plea of guilty but it does remain as a guidepost or a benchmark which I must have regard to in determining the appropriate sentence to impose upon this offender. It is undeniable that by choosing this offence as one which carries with it a standard non-parole period the legislature is requiring and expecting that offences such as these are treated more seriously than they have been in the past.

6 The offender is now thirty-seven years of age. Her criminal history is relevant. She is certainly not a first offender by any means but she has not committed any offence approaching this seriousness. She has never spent any time in custody and her most serious offence was dealt with by way of community service. There is a large gap in her criminal history between her last offence and the present. In the meantime she was working until she suffered an injury at work when she fell down some stairs, it was an injury to her back. She has, I am satisfied, good prospects of rehabilitation. The gap in her record that Mr Kozonechi pointed out is perhaps the most important matter which has led to me making that finding. I am satisfied also that she is remorseful. She said that whilst in hospital she wrote a letter to the principal of the school expressing her remorse. There was no challenge to that evidence from the Crown.

7 Ms Thurlow clearly has a problem with alcohol. She says that the reason that the offence was intended was simply so that they, she and Mr Boyd, could buy more alcohol. She said that in the past she has used drugs and alcohol to block out painful thoughts from her childhood. That childhood is referred to in a psychological report which was tendered by Mr Kozonechi. For obvious reasons Ms Thurlow did not want Mr Kozonechi to ask questions about aspects of that history in open court, however the offender did say that the factual material contained within the report was true. One can then understand why an offender such as Ms Thurlow might use drugs and alcohol to block out painful thoughts from her childhood. She might be forgiven for thinking about resorting to drugs and alcohol in order to do so.

8 Of course principles of parity arise here. The offender should not feel that when she compares the sentence imposed upon her with that I imposed upon Mr Boyd she has a justifiable sense of grievance. There are a number of differences. Ms Thurlow, unlike Mr Boyd was not on conditional liberty at the time of this offence. Her record is much less serious. Mr Boyd had prior offences of break enter and steal and property offences and had served time in gaol for supplying drugs. On the basis of the evidence presented to me the offence was not her idea and again on the evidence presented to me there was much less forethought and planning put into this enterprise. Those differences in my mind justify the difference between the sentence I imposed upon Mr Boyd and the sentence I will impose upon the offender. I think I might have mentioned the offender pleaded guilty at an early opportunity, indeed she made admissions whilst lying on the ground awaiting the ambulance. Accordingly I will discount the sentence I would otherwise impose by about twenty-five per cent to reflect that circumstance.

9 Mr Kozonechi asked that I deal with this matter by way of a suspended sentence, I am not going to do that for two reasons. First is that the length of the sentence I have chosen precludes the imposition of a sentence of that type. Even if there was not that statutory bar I consider that the offence is so serious that there needs to be a component of genuine punishment to be visited upon this offender. After determining the appropriate length of sentence I am satisfied that a period of custody is required. I am satisfied there are special circumstances in this case, it will be the offender’s first time in custody. I also determine that it is appropriate this sentence be served by way of periodic detention. I am satisfied that although the offender could receive the medical treatment she will need in the future whilst in custody the problems that she will face in the future with her need for operations, the prospects of the offender being rehabilitated which will be enhanced if she is able to work Monday to Friday mean that periodic detention is the most appropriate outcome.

10 The order I make is this, the offence of aggravated break enter and steal the offender is sentenced to imprisonment. I set a non-parole period of eighteen months with a head sentence of two and a half years. For the offence of possessing house breaking implements the offender is sentenced to imprisonment. I set a fixed term of six months, that is a fixed term because of the other sentence. I order that both sentences are to be served by way of periodic detention and the offender is to attend the Wollongong or Unanderra, however it is described, Probation and Parole Centre at 8.30 am on 21 March 2009 in order to commence serving her sentence and thereafter to attend that Periodic Detention Centre every Friday evening thereafter as directed.

11 Now Ms Thurlow the gentlemen here will take you downstairs into custody while some paperwork is filled out but you will then be released within a short time. When you commence serving your periodic detention it is important that you attend because if you do not what will happen is that the sentence will become a full-time custodial sentence. It will not be a question of you going every weekend, you will be there seven days a week and seven nights as well.

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