R v Mitchell Perrington

[2012] NSWDC 55

District Court

New South Wales

Medium Neutral Citation:	R v Mitchell PERRINGTON [2012] NSWDC 55
Decision date:	01 February 2012
Before:	Cogswell SC DCJ
Decision:	For the offence of aggravated break, enter and steal I impose a sentence of imprisonment of 2 years. Under s 12 of the Crimes (Sentencing Procedure) Act 1999, I suspend the execution of the whole of the sentence for the whole period of the 2 years and I direct that you be released from custody on condition that you enter into a good behaviour bond for 2 years.
Catchwords:	CRIMINAL LAW - Sentence - relevant factors - response to charges - contrition - made provision for compensation -- assistance to authorities - prior criminality - good prospects of rehabilitation - significant commitment to own rehabilitation.
Legislation Cited:	Crimes Act 1900, s 112(2) Crimes (Sentencing Procedure) Act 1999, s 9, s 12
Category:	Sentence
Parties:	Regina (Crown) Mitchell PERRINGTON (Accused)
Representation:	Solicitors: Director of Public Prosecutions (Crown) I Bruce (Accused)
File Number(s):	DC 2011/211626

SENTENCE

1. This is not the first time that Mitchell Perrington is to be sentenced for break enter and steal. He has several convictions for that very offence on his criminal record.

1. On this occasion his offence was more serious and he has pleaded guilty to an aggravated break enter and steal and is to be sentenced by me.

1. Section 112(2) of the Crimes Act 1900 fixes a maximum of 20 years imprisonment to the offence which Mitchell Perrington committed. Not only that, the Parliament has seen fit to fix a standard non-parole period of 5 years to that crime.

1. Briefly, this is what happened which brought about the charge which Mr Perrington is being sentenced for.

1. He had a significant drug and alcohol problem for a young man who was at the time about 22. Under the influence of drugs and alcohol, he and some others broke in to somebody's home. The people who lived in the home were both aged in their mid seventies. The home was next door to where one of Mr Perrington's co offenders lived. The home was in Windale.

1. What Mr Perrington and the others had done was to jump over the fence, smash a glass panel and let themselves in. They ransacked a cupboard downstairs and took an air rifle and an ornamental bow and arrows set. Mr Perrington raided the fridge and took some food and they also took a couple of mobile phones and a camera, as well as a bottle of whiskey and some keys. They tried to get into the car, but the keys would not operate the car.

1. They went back to the co-offender's house. One of the phones they used to make abusive phone calls to numbers which were already on the phone. One of the phone calls they made was to the victim's adult daughter. She came to her parents' place to investigate and found that the house had been robbed but that, fortunately, her parents were upstairs asleep.

1. The police raided the neighbour's place and found evidence which linked Mr Perrington to the crime. He was arrested almost a month later, on 29 June 2011. He was interviewed by the police and placed in custody. He was in custody until 10 August 2011, some six weeks.

1. As I said, he has committed the offence of break enter and steal on previous occasions. He was sentenced by the Newcastle Local Court on 1 December 2011 and given the benefit of a bond under section 9 of the Crimes (Sentencing Procedure) Act 1999. He was back before the Belmont Local Court a couple of months later, where he again received a bond for the same kind of offence, this time with a recommendation or requirement for drug and alcohol rehabilitation. Some months later he appeared again in the Newcastle Local Court for the same kind of offence and was given the benefit of another bond.

1. Mr Perrington has received an encouraging report from John Murtas, an officer of the Probation and Parole Service at the Lake Macquarie District Office. The report describes Mr Perrington as being a "product of his dysfunctional upbringing, having experienced significant periods of his formative years witness to domestic violence and family dysfunction. His development has been strongly influenced by associations with like minded groups with antisocial tendencies. Nevertheless, he has managed on this occasion to complete an alcohol and other drugs residential rehabilitation program." The report noted that he has made "a shift in his behaviours and maintained a lifestyle which has not attracted the attention of law enforcement." The author of the report described Mr Perrington's "presentation to this service" as being "positive and respectable, given his history of poor response in the past." The author thought that Mr Perrington may have reached a watershed in his life. He thought that he was suitable for a medium level of supervision. The report referred to a past which had been affected by drug and alcohol abuse. He had taken alcohol as long as he could remember and had a significant alcohol problem by the age of about 12 or 13. He started cannabis at the age of 13 and was smoking it on a daily basis, up to 20 cones a day. He was also taking ecstasy and ice 2 or 3 times a week. He left school when he completed year 7, aged about 15.

1. Mr Bruce, who appeared for Mr Perrington, called his client to give evidence. Mr Perrington gave evidence about his father being violent and affected by alcohol. He has stayed, however, in contact with his own mother who has recently, or in the last 12 months or so, commenced to live with her partner, Mr Delore, with whom Mr Perrington has developed a positive relationship.

1. At least one other partner of his mother, after Mr Perrington's father left, drank heavily and was very violent. He was a man who was in his mid-forties and very tall and on one occasion when Mr Perrington and his sister confronted the man for being violent to their mother, the man hit Mr Perrington and broke his jaw. Mr Bruce tendered as exhibit 2 an x-ray report confirming that Mr Perrington had suffered a broken jaw in 2008.

1. Mr Perrington said his mother was always there for him, but his father, in addition to being violent, had also hurt his mother and at one stage had kidnapped him and his sister. It was his father who had introduced him to his first drink.

1. Mr Perrington has, with his current partner, a daughter, Allayna, who is 10 months old.

1. When he was interviewed by the police, he offered them significant assistance and still maintains his readiness to give evidence against any co offenders.

1. The six weeks he spent in Cessnock Prison, bail refused, was his first experience in custody, and he described himself as being "really scared" and described the prison as being a "frightening place". It, however, gave him an opportunity to think about the sort of behaviour he had been engaged in and what he had done to the victims of the crime I am sentencing him for. He realised that his behaviour was affecting all those around him who loved him, and realised that he was in fact loved by those around him. He acknowledged that the victims of his offence would probably not feel safe in their own home, and was very remorseful. He acknowledged under cross-examination by Mr Outram, who appeared for the Director of Public Prosecutions, that he had put aside a couple of hundred dollars to make provision for compensation, which the victims of the crime are claiming in the amount of some $2200. He is prepared to pay the balance of that off. He acknowledged that the crime which he committed was a very stupid thing to do. He is hoping to secure some employment in the future in Morisset. He described to Mr Outram in cross-examination his drug taking habits and the fact that a SIM card from one of the stolen phones was broken. He described Mr Delore as his mentor.

1. Significantly, when Mr Perrington was released on bail from his remand on 10 August 2011, he entered some weeks later an alcohol and drug rehabilitation centre called The Glen Centre. There is a report which Mr Bruce tendered as exhibit 1 from that centre dated 22 November 2011. It said that Mr Perrington had "participated well in the program and has talked to the counselling staff when issues have come up for him. Mitch is a nice young man who has worked hard while in residence with us to address his issues around his drug use." It said that he had attended counselling as well as group sessions, parenting courses and had enjoyed the work and sporting programs.

1. Mr Bruce realistically acknowledged that the offence called for a penalty involving imprisonment, but argued that the penalty should not exceed, ultimately, 2 years. He argued that the objective seriousness of the crime was below the middle of the range of objective seriousness, and Mr Outram did not take exception to that submission.

1. Although there was some planning, said Mr Bruce, it was limited.

1. There was an early plea of guilty and an offer of assistance to authority and his client's remorse, he argued, was patently genuine.

1. He referred to his client's background in his formative years and his experience in custody.

1. The rehabilitation course at The Glen Centre was for some 3 months, and Mr Bruce argued that it was a strictly residential program, so that it was not unlike being required to stay in custody, and I could allow some 50 per cent of that time to count as pre-sentence custody, along with the six weeks which his client had served in gaol on remand.

1. He argued that his client's prospects of rehabilitation were good.

1. Mr Outram pointed to the sentence which one of the co-offenders had received. He pointed out that parity is strictly not an issue because the co offender was a juvenile. The co-offender had been dealt with in the Children's Court for the same offence, and received a probation order for 12 months.

1. Mr Outram did not disagree with the submission that the final sentence might be one of 2 years or less, given the period of pre-sentence custody and the period in the residential rehabilitation centre and there was, he said, no factor under section 21A(2) which was appropriate to draw my attention to. There must be some good prospects of rehabilitation, given Mr Perrington's experience at The Glen. He acknowledged Mr Perrington's remorse and demonstrated contrition by putting aside the money for compensation.

1. I regard an appropriate commencement sentence as 3 years imprisonment. I find it to be well below the middle of the range of objective seriousness. I have also taken into account that Mr Perrington has effectively served some 4 months of imprisonment already and I have taken that into account in assessing 3 years as an appropriate commencement figure for the sentence. The planning was very limited. Mr Perrington is a young man and his rehabilitation prospects I regard as very good.

1. Mr Perrington has pleaded guilty at the earliest available opportunity which itself attracts a discount of some 25 per cent to the sentence which I would ordinarily impose. In addition, he has already assisted the authorities by giving them information and has agreed to provide further assistance if need be. I regard an appropriate combined discount for those two facts as being some 33 per cent.

1. Accordingly, I propose to reduce the otherwise appropriate sentence of 3 years imprisonment to one of 2 years imprisonment, which is the sentence which I will impose.

1. The sentence which I originally fixed before the discount does not involve the standard non-parole period for the following reasons. First is the plea of guilty entered by Mr Perrington and, secondly, his good prospects of rehabilitation. In addition, I have taken into account his genuine remorse and the assistance which he gave to the authorities. Those are all factors which I have taken into account in fixing that sentence, which are also factors which are relevant to not fixing the standard non-parole period.

1. Despite the opportunities he has been given by courts in the past with good behaviour bonds, I propose to suspend the sentence as Mr Bruce submitted I could do, and Mr Outram did not disagree with that submission.

1. I propose to do that because of the significant commitment which Mr Perrington has made to his own rehabilitation, as demonstrated by the three months which he has spent in the full time residential rehabilitation centre, The Glen Centre. As I said, I think his prospects of rehabilitation are good.

HIS HONOUR: Now, Mr Perrington, if you would stand up.

1. I convict you of the offence of aggravated break enter and steal. I impose a sentence of imprisonment of 2 years in respect of that offence and under s 12 of the Crimes (Sentencing Procedure) Act 1999, I suspend the execution of the whole of the sentence for the whole period of the 2 years and I direct that you be released from custody on condition that you enter into a good behaviour bond for 2 years.

HIS HONOUR: Have a seat. Now, Mr Bruce and Mr Outram, terms of the bond, please. Conditions, I should say.

BRUCE: It is clearly a matter that your Honour would be attracted to the proposition that he attend upon Probation and Parole, drug and alcohol being matters that--

HIS HONOUR: Probation and Parole supervision; drug and alcohol. Anything else? I don't think so. Which office should he report to? What's the nearest?

BRUCE: Your Honour, Newcastle would be more convenient, for reasons of transport and the like.

1. The conditions of the bond are these: one, that he be of good behaviour; two, that he attend court when called upon to do so; three, that he notify the registrar of this Court of any change in his residential address; four, that he accept supervision from the Probation and Parole Service and any reasonable recommendations and directions given by that service, including directions concerning the following - alcohol and drug rehabilitation, areas of relapse, aggression and violence, completing any program addressing those issues, as well as the managing emotions developmental program. He is to report to the office of the Probation and Parole Service at Newcastle on or before 5.00pm next Wednesday, 8 February 2012.

1. I note that the indictment by which Mr Perrington was arraigned was dated 2 February 2012, but in fact he was arraigned on 1 February 2012.

HIS HONOUR: Now, in a moment I will explain what I need to explain. Are there any other formal matters that I need to do, Mr Outram, Mr Bruce?

OUTRAM: No, your Honour.

1. Now, Mr Perrington, you have received a gaol sentence. It is 2 years. Do you understand, I have given you 2 years. But I have suspended the sentence. You have not had one of those before. It means just that, your sentence is suspended. It is suspended for 2 years, and attached to it is a good behaviour bond, just like you have had before. You have had similar conditions before. I am sending you to Probation and Parole. They know what they are doing, they will help you, or they will support you in the good work you are already doing. They have got some programs which are referred to in their report, which Mr Bruce has asked you to read, relapse prevention, obviously important with somebody with issues like you, dealing with aggression or violence, and managing emotions, things like that. It is important that you turn up to the Probation and Parole Office here at Newcastle before next Wednesday at 5.00pm.

OFFENDER: Yes, your Honour.

1. And there are certain other formal conditions. You have got to behave yourself generally; no drunken driving, or fights or anything like that. If you change your address, you have got to let the registrar of this Court know, you have got to write a letter or send an email. And if you get a notice saying you have got to come to court, then you turn up. We do not want to have to send the police or the sheriffs out to get you; you have got to turn up.

1. Now, the most important thing to say to you about this is something I think Mr Bruce referred to earlier. This is not like the other good behaviour bonds that you have had. It is not. It looks the same, but if you breach this one and you come back before me - and I usually ask for offenders to come back before me - it might have been Mr Outram who said this, it is very hard for the judge not to send you to gaol. The legislation is such that, pretty well, if you break the bond, my hands are tied. All I have to do is fix a non-parole period and send you back into gaol. It is very difficult to get out of it. It is not just a matter of saying, "Well, look, this is what happened when he broke the bond, it was just bad luck, and he just had too much to drink, and this and that." It does not count. In you go. That is because it is a suspended sentence. It is not just saying, "Look, off on a good behaviour bond, don't do it again." I have actually sentenced you to gaol for 2 years, but I have suspended it on condition that you behave yourself, and if you breach it, then it is pretty well my obligation to impose that sentence and fix a non-parole period. So you have got to be very aware of that, and I think you will find that Mr Bruce will probably remind you again. I think you probably have to go to the registry to sign the bond, so Mr Bruce will tell you about that as well.

HIS HONOUR: Now, anything else?

OUTRAM: Only this; for abundant caution, I might amend the indictment, if I can, and initial the amendment, your Honour.

HIS HONOUR: If you can, yes.

OUTRAM: I can do that.

HIS HONOUR: That's why I looked at it, and it looks as though it's signed by Ms Booth, and I wasn't sure whether you would be able to amend it or not, which is why I put it on the record.

OUTRAM: I have been around forever, your Honour, and have that delegated authority.

HIS HONOUR: Good. Thanks, Mr Bruce, thanks, Mr Outram.

1. Now, you have heard everything that I said. It sounds as though you are getting things back on track, Mr Perrington. As you could hear, I was very impressed by your Glen program. You have got the family behind you, you have got your own family now, and you have got Mr Delore as your mentor, you have got your mum, your partner and your daughter. So it is up to you now. So, good luck.

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Decision last updated: 02 May 2012