R v Matthew Myatt

[2009] NSWDC 419

CITATION:	R v Matthew MYATT [2009] NSWDC 419
JUDGMENT DATE:	9 April 2009
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	Total term of 2 years imprisonment, 2 years non-parole period. Referred to the Drug Court
CATCHWORDS:	CRIMINAL LAW - sentence - break, enter and steal - break and enter with intent - malicious damage to property - plea of guilty - drug addiction - psychological report - pre-sentence report - prior criminal record including similar offences - referred by Drug Court to the Compulsory Drug Treatment Program - remarkable progress - whether to fix non-parole periods longer than current ones
LEGISLATION CITED:	Crimes Act 1900 s 112(1), s 113(1), s 195(1)(a) Crimes (Administration of Sentences) Act 1999 s 106W(1) Crimes (Sentencing Procedure) Act 1999 s 50(1)
PARTIES:	Regina Matthew Myatt
FILE NUMBER(S):	2009/1263
SOLICITORS:	Mr Kiru (for the NSWDPP) Ms Maranga (for Mr Myatt)

JUDGMENT

SENTENCE

1. I am going to sentence you now Mr Myatt and you know the routine from your experience with the courts. I am going to talk for about twenty or thirty minutes and then I am going to announce your sentences and I confirm the non-parole period will be no longer than your current one.

2. I am sentencing a young man for a series of crimes involving breaking and entering and damaging property. He was a drug addict at the time. That is not, sadly, an unusual job for a judge to be doing. What distinguishes this case is the remarkable contrast between the young man’s life and future prospects when he committed those crimes and now. Although he is presently in custody he is in the process of turning his life around from being a drug addicted criminal with no future prospects to a drug free life undertaking education and looking at some form of future employment.

3. Matthew John Myatt has pleaded guilty to four crimes. Two of them are break enter and steal against s 112(1) of the Crimes Act 1900. They carry a maximum of fourteen years imprisonment. One of them is break and enter with intent, an offence against s 113(1) of the same Act, carrying a maximum of ten years and the fourth crime is malicious damage to property. That has a maximum of five years imprisonment fixed by s 195(1)(a) of the Crimes Act.

4. The offences were all committed in the early hours of 6 September 2007. Briefly this is what happened. A building at 8-10 Palmer Street, Parramatta is by the sounds of it a commercial building. There are suites in the building which contain offices of various businesses. Mr Myatt has agreed that in the early hours of 6 September 2007 he broke into the building and broke into a number of those offices. From one of the offices he stole a camera and currency, from another office he stole another camera. Another office he broke into but did not find anything to steal. Not only that he obviously made a serious attempt at breaking into a large number of the other offices.

5. Police when they were called the next morning found extensive damage to many doors and glass panels and windows within the office complex. Mr Myatt was obviously determined to get as much as he could from the people who operated their businesses from that building. The damage which he caused was substantial, it took about six months to be completely repaired. It must have caused a huge amount of inconvenience to the owner of the building and to the owner’s tenants.

Mr Kiru, I’m just going to stop here. The damages, it says here $50,000 is that right? On page 3 of the facts.

KIRU: Yes your Honour.

HIS HONOUR: That was the estimate is it, $50,000?

KIRU: Yes, that’s the cost of repairs, yes your Honour.

6. The cost of repairs is estimated to be in excess of $50,000 which although covered by insurance nevertheless has resulted in a payout of a large amount of money. The consequence also is that insurance companies charge their clients higher premiums and charge other clients high premiums because of having to pay out claims such as this.

7. The reason that Mr Myatt committed these crimes becomes obvious when I read exhibit 1 which is a report by Suzanne Freeman dated 20 December 2007. She is a registered psychologist. She highlights a history of very serious drug addiction starting with cannabis graduating through ecstasy and amphetamines to smoking and then injecting heroin regularly. His drug habit at stages, according to the pre-sentence report which is part of exhibit A, got up to $1,000 or $1,200 a day. The pre-sentence report prepared by Pauline Jeffress, a Probation and Parole officer and dated 2 April 2009, also notes a problematic history of alcohol and problems with gambling as well. These addictions in Mr Myatt’s life obviously explain but do not excuse his behaviour.

8. This is not the first time that Mr Myatt has been before the courts. Ever since he was a juvenile he has been committing crimes. Included amongst those crimes are a number of offences similar to the ones which I am sentencing him for. He has convictions for breaking and entering and malicious damage. He has served time in custody for such offences before now. Of significance in this criminal record were sentences imposed on 3 March 2008. They were imposed by the Parramatta Drug Court. They were for aggravated breaking and entering, committing serious indictable offences which were committed on 2 October 2007, about a month after the crimes that I am sentencing him for. He was sentenced to three and a half years imprisonment for one of those crimes and three years imprisonment for the other. The non-parole period effectively expires on 9 September 2010. In addition the Drug Court referred him to the Compulsory Drug Treatment Program at Parklea.

9. That was a very significant referral and explains my opening remarks. Since going into the Compulsory Drug Treatment Program at Parklea Mr Myatt has made very significant progress. There are three stages in the program : he has gone from stage one to stage two although one setback put him back into stage one but he persevered and is now back into stage two.

10. In the stage that he is at now he has undertaken a course of study at TAFE in Information Technology. He is hoping to continue that course beyond the semester that he is currently undertaking. He is enjoying the course which is not surprising because the psychologist’s report notes that he obtained exceptional marks for Science at school and high marks for Mathematics. In fact the psychologist assessed his IQ at 114, in the above average range. He is obviously a young man with a good deal of potential. In addition to the leave which he is granted for his education he has what is called social leave and spends time with his mother at the weekend. His program is very full which explains why he is not looking for employment at the moment but his plans include looking for some form of employment at an appropriate stage. He wants to obtain qualifications, stay clean and live what he described appropriately as a normal life. The rehabilitation programs he is offered in custody are obviously working well with him and he is participating.

11. The pre-sentence report confirms much of the material contained in the psychologist’s report including his history of drug addiction. It noted that he was transferred to the Compulsory Drug Treatment Centre on 18 April 2008, obviously after a successful assessment. The support of his mother will be sustained ,according to the probation officer, as he continues to make efforts to change his life. The report assessed him as unsuitable for a Community Service Order and ineligible for a Periodic Detention Order.

12. I need now to sentence Mr Myatt for these crimes which he has committed. Ms Maranga who appears for him asks that I impose sentences which are concurrent with his present sentences. She points out that the crimes were committed fairly close in time and that I can in fact be more confident of his prospects of rehabilitation than the Drug Court was on 3 March 2008 when it referred him to the program he is now undertaking. I accept that submission and regard his prospects of rehabilitation as good.

13. Mr Kiru who appears for the prosecutor fairly acknowledges the merit of Ms Maranga’s submission and in fact draws my attention to provisions of the Crimes (Administration of Sentences) Act 1999 and the Drug Court Act which may be relevant to the amount of time which Mr Myatt should serve on a non-parole period.

14. I propose to accept Ms Maranga’s submission and sentence him to sentences the non-parole periods of which will expire during the currency of his present non-parole periods. The reason that I do that is because of my assessment of his prospects of rehabilitation. In addition I would regard the prospect of him going from the Compulsory Drug Treatment Centre where he will be until late next year into the general prison population to serve out the balance of any non-parole period which I could impose as being highly undesirable for those prospects of rehabilitation.

15. Turning to the sentences for the two offences of break and enter and steal I regard appropriate sentences for each of those as four years but because he has pleaded guilty I propose to sentence him to three years imprisonment for each. There are obviously special circumstances which warrant adjusting the ratio between the non-parole period and the balance of the term and I will fix a non-parole period of two years. For the offence of break and enter with intent I regard an appropriate sentence as three years but because of his plea of guilty I will reduce it to two years with a one year non-parole period having regard to the special circumstances. An appropriate sentence for the malicious damage which was extensive is eighteen months imprisonment and I will reduce that by six months to twelve months imprisonment because of his plea of guilty.

16. Would you stand up Mr Myatt. Mr Myatt, for each of the offences of break and enter and commit serious indictable offence I sentence you to three years imprisonment. I set a non-parole period for each of those to commence on 10 June 2008 and to expire on 9 June 2010. The balance of the term in each case will be one year from 10 June 2010 to 9 June 2011. For the break and enter with intent I sentence you to two years imprisonment. I set a non-parole period of one year to date from 10 June 2008 and to expire on 9 June 2009. The balance of the term will be one year to commence on 10 June 2009 and to expire on 9 June 2010. For the malicious damage offence I sentence you to one year imprisonment to commence on 10 June 2008 and to expire on 9 June 2009, because that will expire during your non-parole period I will not fix a non-parole period for that sentence.

Have a seat for a moment. Now Mr Kiru, Ms Maranga--

KIRU: Your Honour has to refer the matter to the Drug Court.

MARANGA: That will be my application your Honour.

HIS HONOUR: First though the figures, is there any problem with the figures, any miscalculations, anything that doesn’t add up or work out?

MARANGA: No your Honour.

KIRU: No your Honour.

HIS HONOUR: All right. Now Mr Kiru, you were saying the Drug Court, what’s the Act?

KIRU: Section 106W, volume 3 your Honour.

HIS HONOUR: That seems right Ms Maranga, I should refer him under section 106W(1), do you agree?

MARANGA: Yes your Honour, that’s my application.

17. Under s 106W(1) of the Crimes (Administration of Sentences) Act 1999 I refer Mr Myatt to the Drug Court.

MARANGA: Can I ask for the mention today, so that it doesn’t affect his custodial status, I ask if the matter could be mentioned before the Drug Court today.

HIS HONOUR: That’s fine by me, do you want me to direct that? Is it sitting today?

MARANGA: Yes.

KIRU: Yes but I don’t think that’s going to effect, your Honour, I don’t know whether it is practicable because--

HIS HONOUR: I’ve referred him, if you can get him in that’s fine. I’ll leave it up to you.

MARANGA: Court pleases.

HIS HONOUR: I haven’t specified any conditions of parole - no, because they’re under three years I need to direct.

KIRU: He’s serving another sentence your Honour.

HIS HONOUR: Yes. It looks as though I make the order under section 50 even though he may not be eligible.

18. Under s 50(1) of the Crimes (Sentencing Procedure) Act 1999 I make orders directing the release of Mr Myatt on parole on 9 June 2010.

KIRU: Subsection 2 your Honour it makes clear that--

19. I also direct his release to parole on 9 June 2009. I will explain that to Mr Myatt in a moment but that seems to be what I need to comply with s 50.
Are there any other orders that I need to make?

KIRU: No your Honour.

20. Mr Myatt, I’ve given you three years, I’ve allowed the discount because you pleaded guilty. Your three years I backdated to the same time that your Drug Court sentence started, 10 June 2008, so your three years finishes on 9 June 2011, do you understand that? Your non-parole period effectively two years, there’s a couple of non-parole periods and one fixed sentence. The overall effect is it will finish on 9 June 2010. Although I’ve made an order directing your release on 9 June 2009 and 9 June 2010 that won’t happen. I have to make that order because you’re still subject to the earlier non-parole period which expires in September 2010, do you understand that, but I have to formally make that order. So you will be released on parole, it seems to me on the information that I have or you will be eligible to be released on parole, on 9 September 2010, do you understand that? That’s under the other order, the Drug Court order. You’ve heard what I had to say, you really are underway in changing your life around which is very good for a judge to see. Congratulations, keep up the good work.

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