R v McHughes, Cecil

[2009] NSWDC 383

CITATION:	R v McHughes, Cecil [2009] NSWDC 383
HEARING DATE(S):	05/09/2008, 05/12/2008, 13/01/2009
EX TEMPORE JUDGMENT DATE:	13 January 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Convicted. Section 11 Crimes (Sentencing Procedure) Act 1999, bail granted. Proceedings adjourned for 12 months. Dates to be set for 3 monthly return to court with progress reports.
CATCHWORDS:	Criminal law - sentencing- break, enter and steal in circumstances of aggravation - owner absent for several days - safe, coin collection and other items stolen - gang of juveniles and young men - home ransacked - offenders ignorant of real value or merit of coin collection - offence occurs during parole period for similar offence - twenty-one year old - serious intellectual deficits - diminished language skills - unskolled other than at sport - serious drug and alcohol issues - in danger of social isolation - serious intellectual impairments makes offender unsuitabale candidate for deterrence and hence application of standard non-parole period - youth of offender brings him within exception to standard non-parole period (R v Hearne applied) - compulsory rehabilitation (Griffiths v The Queen applied).
CASES CITED:	R v Gladue [1999] 1SCR 688 [80] R v Cuthbert (1967) 2 NSWR 329 R v Rushby [1977] NSWLR 597 R v Hayes [1984] 1 NSWLR 740 R v David Nicholls [2008] NSWDC 123 Brewster [1998] 1 CrAp.R 220 at 225 R v Hearne (2007) 124 AcrR 457 Griffith v The Queen (1977) 137 CLR 293
PARTIES:	Regina Cecil Damien McHughes
FILE NUMBER(S):	2008/00003514
COUNSEL:	Defence: H White
SOLICITORS:	Crown: Mr. J May

JUDGMENT

1. On 3 July 2007 John George, a resident of Brewarrina, locked and secured his home at 16 Tarrion Street, Brewarrina before heading off to Lismore. Mr George left the house under the periodic supervision of a friend.

2. About 10.30 on Thursday, 5 July a young person RB smashed the kitchen window of 16 Tarrion Street. Some time later this offender entered the premises through the kitchen window, forced the rear door open allowing for entry of the young person RB and another young person, the brother of him, CB plus a co-offender David Nicholls into the house. All went into the kitchen area. After a short time the co-offender Nicholls left with the yellow Leisure brand esky. He left the premises with CB. At the time Nicholls left, the offender and RB remained in the house searching for items of value.

3. The offender and RB completely ransacked the premises, scattering items throughout the kitchen, lounge room and master bedroom whilst searching for items of value. The offender and RB took a number of items from various locations from within the house. The most significant of these being a heavy grey coloured CMI wall safe located in the master bedroom. The two carried the safe out of the house and took it to the backyard.

4. On 18 June 2008 Cecil McHughes began the process of being held accountable for his criminal conduct of nearly a year earlier by pleading guilty before Judge Norrish to a charge that he on or about 1 July at Brewarrina in the State of New South Wales in circumstances of aggravation did break and enter the dwelling house of John George and in the dwelling house did commit a serious indictable offence, namely steal a quantity of Australian and foreign currency, a number of military service medals, commemorative coins, personal property, a safe, a motorcycle and an angle grinder, all the property of the said Mr George.

5. As sentencing judge it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentence for this offence before this court committed by this offender harming this victim, that is, Mr George, in the community of Brewarrina; Gladue v The Queen [1999] 1SCR 688 [80]. My initial task requires an assessment of the objective criminality of the offences before the Court. I will also need to have regard to matters personal to him, that is, the subjective matters. The starting point for such assessments requires a sentencing judge to make findings of fact from the evidence before the Court relating to both the offence and to the offender. My fact finding task has been circumscribed in that the parties have tendered an agreed set of facts. It will be sufficient at this point that I remind the Court that a judge is not a party to the agreed set of facts. The tender of the agreed set of facts does not relieve the judge from his or her fact finding responsibility, it simply limits the material from which those facts may be found. To the extent, if it be the case, that the facts as agreed do not reflect the actual events that occurred, it must be remembered the Court can only find facts on the evidence placed before it.

6. The offender’s rehabilitation prospects, particularly given his age, will have to be assessed even if looking through a glass darkly.

7. Before any sentence can be made there are likely to be other questions such as deterrence, discounts, whether special circumstances are to be found and the like. One particular feature in respect of this offence is whether a standard non-parole period is to be attracted and, if so, its length. Finally, of course, if a term of imprisonment is to be imposed that needs to be determined as well. In this case also, particularly bearing in mind the rehabilitation, whether there is any process that can be undertaken to advance that rehabilitation. What weight needs to be given to all of these matters against the imperative that all sentencing should have as its primary focus the protection of the community will also need to be determined; see R v Cuthbert (1967) 2 NSWR 329, R v Rushby [1977] NSWLR 597 and R v Hayes [1984] 1 NSWLR 740.

Further Facts

8. The offender and RB having taken the safe from the house made their way to a shed at the rear of the premises. RB forced entry into the shed and the two entered. From the shed a 1993 Suzuki TF185 motorbike and a blue Makita brand angle grinder were stolen as was a wheelbarrow located against the northern fence area. The safe and angle grinder were placed in the wheelbarrow and moved a distance from the house. The offender then left the premises, went and arranged for a utility motor vehicle to come. The offender and RB put the safe on the utility and the motorbike was towed away, that is the motorbike with the co-offender on it was towed away.

9. During the morning of Friday, 6 July 2007 this offender and RB forced entry into the safe at 9 Culgoa Street, Brewarrina, which was his, that is RB’s residence. They used the angle grinder. The safe contained a large pre-decimal coin collection, including a rare 1930 penny and a 1921 square kookaburra penny, a large assortment of other valuable,. rare and antique coins, an Australian pre-decimal paper banknote collection, various war service medals standing in the name of M J Hegarty, who was, as I understand it, Mr George’s father, and other commemorative coins. The value of the coin collection was subsequently assessed as being $116,775. The majority of the collection was in “very fine” or “mint” condition.

10. On 12 July police recovered a number of coins and documents relating to the coin collection. They were identified by Mr George and returned to him. On the same day Mr George located his wheelbarrow at a vacant house block nearby.

11. On Friday the 13th a search warrant was executed at 10 Barwon Street, Brewarrina, where police located a single silver coin. Mr George later identified that coin as belonging to him.

12. On Tuesday, 17 July Lynn Crowley, owner/manager of the Cash and Carry Store, Bathurst Street, returned a number of assorted Australian currency coins to George. She had accumulated the coins via means of transactions at her store. Ms Crowley indicated that she identified the coins by conducting afternoon checks of the till and did not know who had supplied these specific coins. Mr George identified these coins as belonging to his collection.

13. On Thursday, 26 July 2007 police conducted a search warrant again of 9 Culgoa Street, Brewarrina, where they located various documents relating to the coin collection, numerous pieces of plastic casing from the missing Australian currency, a casing being part of the material needed to keep the coins in mint condition, the missing yellow Leisure brand esky and a missing Kodak camera within the shed, a green coin album containing a collection consisting mainly of pennies, including the valuable 1930 penny underneath a box behind one of the sheds, a lug ground off from the safe door and a metal handle, which clearly must have been the door handle for the safe on the ground near the sheds and the missing Suzuki bike. All of the items were seized by police and a large portion of the rare coin collection is still outstanding. Significantly and sadly the war service medals have not been found or returned. The safe is believed to have been discarded in the Barwon River. It has not been recovered, although its door has been.

Objective Criminality

14. From the facts as he finds them to be, the sentencing judge is required to assess the objective criminality of the offence as an essential step in assessing the seriousness of the criminal behaviour of this offender. That is done by comparing objectively the criminality exhibited in this case with criminality of offences of a similar kind. It is in that way that the objective criminality of this offence is evaluated. The objective criminality, not surprisingly, has a very important impact upon the overall sentencing outcome.

15. The criminal justice system places great store upon the sanctity of a person’s home. For example, in the normal course of events police or government authorities must seek the Court’s permission before they enter even the most humble person’s home without that person’s permission. Before they are given permission, the Court must be satisfied that their purpose in entering the home is a lawful or legal purpose. To enter anyone’s home without permission of the owner is antisocial and therefore criminal. To enter that home for an illegal purpose, in this case to steal, is even more antisocial; the level of criminality becomes greater. Where several persons join together to unlawfully enter the home for an illegal task of ransacking the home and stealing things, the level of criminality becomes greater still. To illustrate this point, the law increases the maximum penalty so that while the offence of stealing carries a maximum penalty of five years gaol, where there is a breaking and entering accompanying the stealing, the maximum penalty becomes fourteen, and when the breaking and the entering and the stealing is done in the company of others, the maximum penalty becomes one of twenty years, or five (sic) times what it would be if something was simply stolen.

16. In R v David Nicholls [2008] NSWDC 123, a case of one of the co-offenders that I sentenced on 3 April 2008, I observed in the well known English case of Brewster [1998] 1 CrAp.R 220 at 225, the presiding judge made these observations, “Domestic burglary is and has always been regarded as a very serious offence.” This is an offence of burglary in company, just so that Mr McHughes can understand what I am saying:

“Burglary may involve considerable loss to a victim. The loss of material possessions is only part and often a minor part of the reason why domestic burglary is a serious offence. Most people perfectly and legitimately attach importance to the privacy and security of their homes. Should an intruder break and enter for this dishonest purpose that leaves the victim with a sense of violation and insecurity. Even where a victim is unaware at the time that the burglar is in the house, that can present as a frightening experience to learn that a burglary has taken place.”

The same case made the point that a victim may lose possessions of particular value to him. A coin collection, and particularly the collection of medals of family heroes, would, of course, be matters of great importance and great historical importance to a victim.

17. When sentencing David Nicholls for his role in this offence, I made some further observations which are also of some relevance to this offender’s criminality.

41: The value of the goods taken may well have amounted to something in the order of $125,000. The coin and paper collection, as I said, was valued at $116,000. While it is unlikely that burglars had any idea of the value of the items taken, indeed the owner valued his collection at only $40,000, nonetheless a measure of criminality is the real value of items taken. Money value is one measure of the real value, but to the owner sentimental, aesthetic and historical value are also of importance.

42: The loss off war medals belonging presumably to his father and grandfather may well represent a greater loss than their money’s worth. The high value of the goods taken consequently amounts to an aggravating feature. Fortunately much of the permanency of that criminal damage has been mitigated by the police discovery of many of the stolen items, including two of the most valuable.

43: A feature of this case is the burglars’ crass lack of appreciation of the aesthetic, historical and emotional significance of a collection of this quality together with the war medals. Such is the reverence that numismatists would have for items in this collection that they would have worn special gloves to handle them. For these offenders what they could not spend was strewn about the yard and shed with total disregard to their collective quality. While I have made this observation, I have not added this ignorance to the criminality I am dealing with.

18. Other aspects of the criminality involved in this offence include the damage done to Mr George’s home. A window was broken and it would seem the lock on the back door was forced. The premises were ransacked.

19. The offender’s role, as set out in the agreed facts, was a major role. It was he who first entered the premises, opened the door for the others to enter, participated in the extensive search of the premises, removed the safe and its contents from the premises, and with RB forced entry to the shed and stole the motorcycle and angle grinder. I do not ignore that the premises were ransacked by the offender and RB. The Crown has conceded that the offence was not planned nor part of an organised criminal activity.

20. The offender gave to Greg Tryer, a clinical psychologist, an account in August 2008 that is different from the agreed facts. While he was not cross-examined on the account he gave, I note his counsel signed the agreed facts in September 2008, that is a month after this offender spoke to Mr Tryer. My findings of fact are based upon the agreed statement which is made later in time than on the account given by this offender to Mr Tryer.

21. The Crown submitted that this offender was the eldest in the group, twenty-one years. Damage was occasioned to a window and doors. The house was ransacked. Real and aesthetic value of items stolen was substantial. That submission appears well founded. Based upon that submission, the Crown argued the offender’s criminality therefore fell towards the midrange of seriousness. On the agreed facts this offender’s criminality is greater than others. RB was fortunate in that the agreed facts in his case painted him in a more favourable position than the agreed facts in Mr McHughes case would have painted him.

22. There are factors which place this offender below the midrange of seriousness. The Crown concedes it was not planned. The four persons constituting the co-accused were young, all were apparently inexperienced, lacking in any real expertise. I am satisfied the premises were not specifically targeted for the purposes of exploiting the real value of the coin collection. Indeed, as I earlier remarked, they had no idea of its real or aesthetic value. There is no evidence before me establishing this offender had any knowledge of the coin collection until after the safe was opened. From his own admission he claims to have been called to the premises because of the safe. Well the agreed facts place him in the house from the outset. The admission, that is that he was called to the house, if accepted, establishes no more than he knew of the existence of the safe before his arrival. It certainly does not establish prior knowledge of the safe’s contents. He claims to have received about $90 as proceeds of this burglary. Even though the coin collection was valuable, it does not appear those who stole it appreciated that fact. Really there is nothing in the evidence disputing McHughes claim, nor was he cross-examined on it, but in fairness his cross-examination was cut short because he became seriously distressed in the witness box. The facts establish this offence falls below the midrange of seriousness but the offence does otherwise qualify on its objective facts as serious.

Subjective Facts – Personal Circumstances, Background, Family Dynamics

23. Born in 1986 this offender was twenty-one at the time of offending and twenty-two at the time of sentence. McHughes is a single man, the second of four children. His family is still intact. He was raised in Brewarrina. His parents have been strongly supportive of him, attending court in Sydney. His father is a drug and alcohol counsellor at Orana Haven for the past five years. The offender is currently in no relationship and has no children. Mr McHughes would be welcome back into the family home, but may be considering moving from Brewarrina. In August 2008 he told Greg Tryer:

“I’m going all right, but I want to get out. I can get a job in Nyngan. I reckon that would be good. I’d have work. I’d have money. I wouldn’t have to hang around with those other fellows at home. I don’t know anybody there [Nyngan]. I want to meet new people and get on a new track. I want to turn my life around and stay out of prison...I know if I go back home I’ll get into trouble again.”

Education, Training and Skills

24. Cecil McHughes has serious intellectual deficits, a topic to which I shall return, but that would explain, at least in part, why he left school aged thirteen prior to completing year seven. His father says he had ADHD problems. He has not completed further education, but has been employed in a number of unskilled positions. His expressive and receptive language skills are restricted causing him difficulty in understanding the tenor of conversations going on about him or sometimes in which he is involved. Mr Tryer spoke of the need to explain and elaborate on questions he (Tryer) put to Mr McHughes. He also told Tryer that he did not understand what went on in court but would have his solicitor explain it when court had finished. He spoke of being without mates in gaol. It may be he is becoming isolated because of communication barriers. He has done cotton chipping, mowing lawns and gardening as part of a CDEP program. They have indicated a willingness to hold a position for him. The CDEP program is part-time work. He has some experience in shearing and would like to learn the trade. By far and away his greatest skills are on the rugby league football field, where he plays five-eight or centres. He has played under eighteens and when the senior teams were short, he volunteered to play in the senior grades.

General Health

25. So far as one can ascertain the offender appears to be a fit athletic twenty-two year old. He told Greg Tryer that he had broken his leg in a football game. I am unaware whether there are any lingering issues in relation to that broken leg.

Mental Health Issues

26. Although strictly not a mental health issue, he has been assessed as being in the mild range of developmental disability in respect of his intellectual functioning. His best scores come in arithmetic, block design and object assembly.

27. They are said to range between borderline developmental disability and low average. So assessed, his intellectual functioning falls below ninety-nine percent of the population of his age. He has been assessed as having a permanent disability, his deficits include impairment in comprehension, verbal reasoning, concentration, attention, vocabulary, short term auditory memory, social judgment, sequencing, identifying cause and consequent relationships and general knowledge.

28. He has been taking olanzepine, a psychotic drug used in the treatment of schizophrenia, bi-polar disorder and acute psychosis, for hearing voices. So he has been taking olanzepine for hearing voices. He claims to have been sent to Bloomfield Hospital, probably in 2005 suffering from acute psychosis. He was discharged after five days and told to abstain from cannabis use and seek drug and alcohol counselling. I would draw from this that his psychosis was caused by, or aggravated by, his serious cannabis abuse. There may also be traumatic brain damage. He claims to have been dropped on his head as a child and has struck his head on a rock when diving into a river at the age of seventeen. So on that occasion there was a wound, he went to hospital where he lost consciousness. On the evidence before me, I am unable to say if there is any brain damage but I certainly do not rule it out. There is a history of petrol sniffing which may also raise an issue of brain damage as sequelae.

Drug and Alcohol History

29. He claims to have commenced drinking at the age of sixteen, using heroin at the age of seventeen. I have just mentioned his petrol sniffing. He has used speed. He has used cannabis. I am satisfied there is a protracted history of alcohol and drug abuse and I include petrol in that category. He claims and there is no reason to doubt, that at the time of his offending, he was intoxicated by the effects of marijuana and alcohol. There appears to be widespread abuse within his immediate extended family of both drugs and alcohol. The exceptions appear to be his father and one of his brothers.

30. The Probation and Parole report observes McHughes “Has yet to address these issues and seems to lack the capacity and the motivation at this time.” With respect that is not quite true, there is one prior admission to Orana Haven. He spent about one month there and was discharged upon an allegation of stealing. He denies any involvement in that but I note that he was not discharged because of a return to drug use at that time. It was upon questioning in cross-examination on the subject of his discharge from Orana Haven that he became seriously distressed.

31. At this time and distance from the event, I am unable to determine the truth of the matter, and indeed unable to entirely satisfy myself as to the basis upon which he became seriously distressed. There are a number of possibilities including difficulty in comprehending and answering the question or a sensitivity about the issue that had discharged him from Orana Haven. More importantly, he has indicated a desire to try again. While his father cannot interfere with his program or treatment by other case workers at Orana Haven, his daily presence at the site must be an additional support for McHughes. Given his other impediments, such a support assumes an importance.

Character and Criminal History

32. Cecil McHughes is a young twenty-two year old, blessed with athleticism, eye-hand coordination, and a capacity to read the play on a football field. He has in the past exhibited a reasonable work ethic, being able to do a range of jobs, primarily outdoor type work.

33. Putting to one side his work and sport environments, he does though face real problems with understanding and participating in discussions. It is not surprising he was interacting with persons substantially younger than he on the night of this offence. I see some danger in him becoming socially isolated, a matter which those who are concerned with his rehabilitation, should seek to address. His first criminal entry appears to be in 2003, when he was dealt with in Brewarrina Children’s Court for aggravated break, enter and steal. There are other break, enter and steal offences in 2004 (Children’s Court) x 1 and 2005 (Local Court) x 2. For one offence he was given eighteen months with a twelve month non-parole period. That sentence was suspended. However he breached the s 12 bond. On 21 March 2006, the suspension was lifted. He served twelve months, was released to parole on 8 March, 2008. This offence occurred during the six month parole period. There are two further court appearances in the local court relating to a number of driving of motor vehicle offences. There is a fifth break and enter offence in 2006 for which he received six months imprisonment concurrently with the twelve month non-parole period earlier referred to. There are nuisance type offences committed no doubt, when he was drinking in public. But for the five break and enter offences, his record would not be all that troubling.

Approach to the Standard Non-Parole Period

34. I have already assessed this offence on its objective facts as one that is serious, but not so serious as to fall within the mid-range of seriousness. There is one important aggravating feature on the subjective material, that is the commission of this offence whilst on parole for an offence of a similar kind. There are four prior break and enter offences. In his recent past, they disentitle him to any leniency he may be entitled to on account of prior good character. However his cognitive disabilities, particularly as they affect his social judgment and incapacity in identifying cause and consequence of acts, are in my view playing some part in his frequent involvement in crime. It is likely they played some part in his involvement in this offence.

35. Given that he falls into the bottom one percent of his age group in terms of cognitive and developmental ability, he is not a suitable candidate for deterrence. I am satisfied the standard non-parole period was set by parliament with a view to deterring offenders. Those at the extreme edge of the lower cognitive and developmental disability, are therefore not suitable candidates for a standard non-parole period. I find that a standard non-parole period would not apply in this case.

36. Two further factors influence me in the approach that I have taken in this sentencing. At the time of his offending, this offender was relatively young (R v Hearne (2007) 124 AcrR 457). Secondly, since March of 2006, a period of thirty-four months on my calculation, he has been incarcerated for twenty-seven of them. He has a sixty-six percent probability, at least statistically, of returning to prison within two years. In such circumstances it is really in the community’s interests to try to address matters that may contribute to him being exposed to greater vulnerability of offending.

Beginning the Process of Accountability

37. As I have said at the outset, Cecil McHughes must be accountable for his criminality. My view this is a case calling for “compulsory rehabilitation” see Griffith v The Queen (1977) 137 CLR 293. In this case I am seeking to put in place strategies that will assist McHughes avoid re-offending and thereby protect the far west New South Wales community from any further offending. Issues that need to be addressed include:

38. His drug and alcohol addiction - rehabilitation - abstinence

39. Strategies to deal with potential social isolation - sport, employment training

40. Strategies to deal with mental health problems - medication counselling

41. Strategies to permit him to cope given cognitive and developmental disabilities - driver’s licence, accommodation, personal support program, s 11 bail.

42. I have determined that this offender shall be given an opportunity to demonstrate that he can rehabilitate in the areas that I have just identified. It is my view that if those areas are adequately addressed, the likelihood of his re-offending is much diminished. For that purpose I propose firstly to address the issue of drug and alcohol addiction by requiring him to attend full time, the Orana Haven Institute. I have before me a letter accepting him into Orana Haven. The reason that this matter has been put on today was because Orana Haven has been closed over Christmas but was opening sometime today.

43. The offender has to understand that in the event there is a breach of this s.11 bail, the options available to me, or the choices available to me, become very limited. This is a serious offence and in the event that there is an absence of rehabilitation, the only sentence available is full-time custody. In the event that there is rehabilitation, the need for full-time custody, particularly given his age and the disability, becomes diminished. I stand this matter over for finalisation to a date twelve months from today. The offender will be granted bail for the purposes of establishing whether he can rehabilitate. That bail will be conditional. The conditions are these:

• That he is to be of good behaviour.
• That he is to reside at Orana Haven - we have the address for Orana Haven which I will have inserted in the bail.
• That he is to accept supervision by his case manager at Orana Haven and obey all reasonable directions from his case manager at Orana Haven.
• That he is to abstain from the consumption of all alcoholic beverages for the duration of the bail.
• That he is to abstain from the consumption of all non-prescribed illicit drugs for the duration of the bail.
• That he is to submit to random breath and urine analysis tests for the purpose of detecting the consumption of alcohol or drugs. Detection of alcohol or drugs will be deemed a breach of bail. Any refusal to participate in a breath or urine test will be deemed a breach of bail. Any dirty drug or alcohol test will be deemed a breach of bail. A dirty breath test will be defined as where the alcohol content is at or higher than zero point zero one grams of alcohol from one hundred millilitres of blood. The supply of urine sourced from another person is deemed a breach of bail.
• He will accept supervision by Probation and Parole and accept all reasonable directions by his case manager with probation and parole.
• He will report to the court on four occasions during the bail period.
• He will provide proof of competing or participating in each of the activities that forms part of his bail.
• When he has completed Orana Haven, he will reside with his parents.
• He will seek to obtain selection in a rugby league or rugby union football club of his choice and will attend all training sessions as directed by the coach or selectors.
• When he has completed Orana Haven, he is to subject himself to random urinalysis at least three times monthly to be conducted by Probation and Parole or at their direction.
• He is to approach Centrelink or some other employment agency and enrol with them seeking a personal support manager in their Newstart program.
• He is to enrol in, as matters presently stand anyway, the shearing course.
• He is to take any prescribed medication in accordance with doctor’s orders.
• He is at the conclusion of Orana Haven to continue with counselling to be determined and I want to look again at the question of accommodation in case he wants to move to Nyngan late in the piece. Maybe you might want to move to Nyngan towards the end of this bail next year or later this year and we will look at that when the time comes.

HIS HONOUR: Mr McHughes, you are going to come to my court on 6 April to tell me how you are going at Orana Haven, do you understand that?

OFFENDER: Yes.

HIS HONOUR: Your bail may be entered before the Governor of the gaol or his delegate so you can tell them now that you are on bail and I will have this faxed through. Have you got one of the officers there with you?

OFFENDER: Yes he is just outside.