R v Nicholls, David

[2008] NSWDC 123

CITATION:	R v Nicholls, David [2008] NSWDC 123
HEARING DATE(S):	02/04/2008
JUDGMENT DATE:	3 April 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ;
DECISION:	Convicted Sentenced -13 months 15 days imprisonment - suspended conditional upon entering s.12 Good Behaviour Bond.
CATCHWORDS:	Criminal Law - Sentencing - Aggravated Break Enter and Steal (in Company) - valuable coin and war medal collection and other items - offender tasked with removing items from property to other location - aggravating features - planning - extends beyond house to second site - owner absent for some days - lengthy duration of offenders inside - damage to property - home ransacked - $125K property loss - 18 year old offender - some coins recovered
LEGISLATION CITED:	s.12 (3) Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Gladue v The Queen [1999] 1SCR 688 [80] R v Rushby [1977] NSWLR 597 R v Hayes [1984] 1 NSWLR 740 R v Cuthbert [1967] 2 NSWR 329 Brewster [1998] 1 CAR 220 at 225 R v Lovelock (1978) 33 FLR 132 R v Way (2004) 60 NSWLR 168 R v Huynh [2005] NSW CCA 220
PARTIES:	Regina David Nicholls
FILE NUMBER(S):	07/61/0002
COUNSEL:	D.G. Rickard for Offender
SOLICITORS:	Mr J. May: Office of DPP, Dubbo, for the Crown.

JUDGMENT

HIS HONOUR:

1. John George is a numismatist. Numismatics is the study or collection of coins, tokens, paper money and related objects such as medals. Mr George was in possession of one of the top collections west of the Blue Mountains. For safekeeping the collection was stored in a safe located in a spare bedroom in his Brewarrina home.

2. On 3 July, after arranging with a nearby neighbour to feed his dogs, Mr George left Brewarrina for Lismore. The house was left with windows and doors securely locked. The coin and paper money collection was nestled safety in the locked safe. The safe was heavy. Without a trolley, it would take two persons to move that safe.

3. At 4pm on 5 July a neighbour attending the premises gave the dogs a run. He noticed everything was fine. About 8am the following morning he returned to find a small kitchen window smashed, the back screen door lock broken and the shed doors opened. He became concerned and rang police. By 10am Mr George had been informed his home had been broken into; it had been completely ransacked and the safe and its contents were missing.

4. As events had unfolded, it became apparent that two juveniles and two adults, all aboriginal males, were responsible for the breaking, entering and ransacking of Mr George’s home and stealing of his property.

5. Today David Nicholls, at eighteen, the second eldest of this group, is to be held accountable for his role in this criminal activity. He first announced his intention to be accountable when he pleaded guilty in the Local Court in Brewarrina. He confirmed his intention when he pleaded guilty to an indictment presented on Tuesday, 1 April, to a charge that he on 5 or 6 July 2007 at Brewarrina did break and enter the dwelling house of John George situate at 16 Tarrion Street, Brewarrina and then in the said dwelling house did commit a serious indictable offence, namely larceny in circumstances of aggravation, namely that he was in the company of one RB, one CB and Cecil McHughes.

6. 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 the victim that he did in this community (Gladue v The Queen [1999] 1SCR 688 [80]). My initial task requires an assessment of the objective criminality of the offence before the Court. I will also need to have regard to matters personal to the offender, subjective matters. The starting point for such assessments requires the sentencing judge to make findings of fact from the evidence before the Court relating to the offence and to the offender.

7. My fact finding task has been circumscribed to some extent in that the parties have tendered an agreed set of facts to which I shall shortly return. It is sufficient at this point that I remind the Court, a judge is not a party to the agreed facts. The tender of agreed facts does not relieve a judge from his fact finding responsibility, it simply limits the material from which facts may be found. To the extent, if it be the case, that the facts as agreed to not reflect the actual events that occurred, it must be remembered the Court can only find facts from the evidence placed before it.

8. The offender’s rehabilitation prospects will have to be assessed, even if looking through a glass darkly. Before any sentence can be made, there are likely to be technical questions relating to deterrence, discounts, whether this offence attracts a standard non-parole period and finally, of course, the ultimate length of the term of imprisonment or other penalty to be imposed. None of these can be commenced until the primary facts are determined.

9. 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, R v Hayes [1984] 1 NSWLR 740).

Further facts:

10. Entry was gained by smashing a kitchen window. One offender initially entered the house, opened the rear door from within and the other three then entered. At some point the alarm had been cut near the telephone.

11. This offender remained in the house for some five minutes before taking an esky and leaving the premises with one of the juveniles. The offender claims he took the esky with a view to using it. He concedes he knew there were items in the esky but did not identify them. I reject this account.

12. Mr George stored that esky in a sunroom near the fridge. It is likely the esky was empty when it was stored. Ultimately, the esky was found in the middle of a shed on property occupied by Lynette Fazeldene. That property was situate in Culgoa Street, Brewarrina. In the esky were two glass jars and a Kodak camera box, probably relating to a camera that was stolen.

13. This offender lives at Narran Street. He had taken, he said, the esky for his own purposes. If that were so, it is more likely the esky would not have been with all the items found at Culgoa Street. I am satisfied the esky was loaded with items to be taken from the property. This offender was tasked with removing the esky and its contents from the premises.

14. The offender claims he did not see the safe in the premises. Given that some of the contents of the safe were found in the same location as the esky was found, I have serious reservations about accepting that evidence.

15. The agreed facts concede that at the time of his departure the two adult offenders were searching the master bedroom. The agreed facts contain the following:

At the time this offender left RB and McHughes were searching the master bedroom. This offender then attended Shane Orcher’s house a number of streets away. (I have difficulty with that but it is an agreed fact. It does not explain the fate of the esky.)

Police allege that RB and Cecil McHughes completely ransacked the premises, scattering items throughout the kitchen, lounge room and master bedroom. RB and McHughes took a number of items from various locations from within the house, including a Kodak vintage instamatic camera, (coincidentally, the camera box is found in the esky) two watches and other assorted items.

RB and McHughes removed a grey coloured CMI wall safe positioned on the floor in the master bedroom. This safe contained:
A large pre-decimal coin and paper money collection worth $116,774.50, including a rare 1930 penny and a rare square penny; A large assortment of extremely valuable, rare and antique coins; An Australian pre-decimal paper bank note collection; Various war service medals in the name of the victim’s father, M Hegarty, a returned service medal, (presumably in the name of the victim’s grandfather, J M Hegarty) and other commemorative coins.

RB and McHughes forced entry into the rear shed and took from within it a 1993 Suzuki TF 185 motor bike and a blue Makita brand grinder. RB and McHughes also took a red wheelbarrow located leaning against the northern fence. RB and McHughes took the safe and motor bike to 9 Culgoa Street, Brewarrina. (It would seem that they had some assistance in doing that from others not involved directly in the break in, including someone driving a utility. )

During the morning of Friday, 6 July 2007, RB and McHughes forced entry into the safe. RB and McHughes removed the rear wheel of the motor cycle before storing it in a shed at 9 Culgoa Street, Brewarrina.

On 12 July 2007 police recovered a number of coins and documents relating to the coin collection. They were later identified by Mr George and returned to him. On the same day Mr George located his wheelbarrow at a vacant house block on Wilson Street, (which, as I understand, is a street nearby his premises at Brewarrina,) 200 metres east along Wilson Street from his own house.

On Friday, 13 July a search warrant was executed at 10 Barwon Street, Brewarrina. Police located a single silver coin later identified by Mr George as belonging to him. That coin was returned to him.

On Tuesday, 17 July 2007 Lyn Crowley, owner/manager of the Cash and Carry Store, Brewarrina, noticed and returned a number of assorted Australian currency coins to Mr George. She had accumulated these coins via means of transactions at her store. Ms Crowley indicated she identified the coins via conducting afternoon checks of the till and did not know who supplied any of the specific coins. Mr George identified some of the coins as belonging to his collection previously contained in the safe. (The portions in paranthetical brackets not submitted as part of agreed facts).

16. I note that if any of them were in mint condition when taken their being used in commercial transactions would have destroyed that classification for those coins and consequently their value.

On Monday, 23 July 2007 police divers located the door of the CMI safe in the Barwon River underneath the Barwon River Bridge, on the Kamilaroi Highway on the northern town exit. On inspection, police could see the lugs of this door had been ground off and the handle was missing. Police had received information that the safe had also been deposited in the Barwon River.

On Thursday, 26 July 2007 police conducted a search of 9 Culgoa Street, Brewarrina. An occupier’s notice was served on Lyn Fazeldene who, as I understand it, was the occupier of those premises. Police located:

· Various documents pertaining to the coin collection and numerous pieces of plastic, casing from the missing Australian currency coin collections in the rear yard and inside three rear sheds;
· The missing yellow Leisure brand esky and the missing Kodak camera within these sheds;
· A green coin album containing a collection consisting mainly of pennies, including the 1930 penny missing from the collection underneath a box behind one of these sheds. My memory is the square penny worth $40,000 was also found at that site;
· A lug ground off the safe door and a metal handle consistent with the door handle for the safe on the ground near the sheds;
· The missing Suzuki motor bike in one of the rear sheds.

28. All of these items were seized by police. A large portion of the rare coin collection is still outstanding. The value of the unrecovered portion of the coin/paper money collection is said to be in the region of $18,000. Perhaps of more significance, the war medals of a World War II soldier and the returned service medal of a World War I corporal in the Gunnedah Rifles is still missing.

29. Seven weeks after the burglary David Nicholls volunteered himself to the police at Brewarrina Police Station and made admissions as to his involvement in the offence. He participated in an ERISP in which significant admissions were made by him and the investigator’s knowledge of the identity and movements of the burglars was either confirmed or revealed.

30. By 27 July, that is a week before his surrender, police were certainly interested in one of the juveniles. This offender was the first to be arrested. He attended the police station in company with another person, a juvenile, who had some connection with the offence, although on the facts before me it is not clear what. Other arrests followed. Two of the offenders have pleaded guilty. One is to come before the Local Court on 6 May. The other alleged offender has been committed for trial in this court.

Objective criminality:

31. 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 what is called the “instant offence”, that is the offence I am dealing with, with criminality of offences of a similar kind. It is in this way that the objective seriousness of the criminality of this offence is evaluated. The objective criminality has a very important impact upon the overall sentencing outcome.

32. The criminal justice system places great store upon the sanctity of a person’s home. For example, police and other government authorities must seek a court’s permission, in the normal course of events, before they enter even the most humble person’s abode. Any analysis of section 112 and 113 of the Crimes Act, that is the sections dealing with offences of which breaking and entering are an essential element, would yield the inescapable fact that these sections focus upon the crime of breaking and entering the personal space of the occupant as one aspect of a two pronged crime. In this case, the second aspect is the intent to commit the felony, larceny.

33. The offence of larceny prosecuted on indictment carries a maximum penalty of five years. If one breaks and enters a person’s home, that maximum penalty nearly triples to fourteen years. The aggravation of the larceny, if I can put it that way, to merit a maximum penalty of fourteen years occurs because of the store that the law puts on the importance of the sanctity of a person’s home. If one does that in company with other people, that fourteen year penalty rises to twenty years. So that if one breaks into somebody’s home in the company of others for the purpose of stealing, instead of facing a maximum penalty of five, the maximum penalty becomes four times greater, amounting to twenty years.

34. In a well known English case of Brewster [1998] 1 C.A.R. 220 at 225 the presiding judge made these observations:

“Domestic burglary is and has always been regarded as a very serious offence. It 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 legitimately attach importance to the privacy and security of their homes. Should an intruder break or enter for his 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, it can present as a frightening experience to learn that a burglary has taken place.”

35. 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 of historical importance to a victim.

36. In this case there are features suggesting some thought went into the burglary. There were two dogs on the premises. No one makes any comment as to how it was they

did not raise an alarm. The dogs were in the yard. The burglary extended from beyond the house to a shed in the yard. On its own, the silence of the dogs, or the apparent silence of the dogs, does not amount to much because the dogs may have been old or friendly but it is a disturbing feature that they did not raise the alarm.

37. The burglary occurs at a time when the occupant was away for several days. The ransacking of this house, the search for and means of taking the safe, an angle grinder, a motor cycle, from the premises all took time. This offender limits his time in the premises to five minutes. Five minutes for a burglar is quite a substantial time but the two adult offenders were there for a substantially longer period. A kitchen light was switched on. A search of the shed, separate from the house, was conducted. Three items of substantial size, a motor cycle, a safe and wheelbarrow, were removed. All of this is consistent with a confidence that the burglars would not be interrupted.

38. This offender denies any prior knowledge of the offence prior to his joining his co-offenders at about 11pm. For him it was an opportunistic crime, starting with one of the juvenile offenders, borrowing his jumper, presumably to wrap around his hand as he smashed the kitchen window. I cannot see any other purpose for the borrowing of that jumper, even though it was a winter’s night. This offender says that the juvenile gave him his jumper. It does not make much sense to me.

39. The damage to the window and the damage to the door aggravate this burglary.

40. There was a ruthless thoroughness to the search for booty. The house was ransacked and left in chaotic disarray by the burglars. That constitutes an aggravating feature of this burglary.

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 the burglars had any idea of the value of 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 the sentimental, aesthetic and historical value are also of importance.

42. The loss of 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 recovery of many of the stolen items.

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 numismatists would have for items in this collection that they would have worn special gloves to handle them. For these offender’s, what coins they could not spend were strewn about the yard and shed with total disregard to their collective quality.

44. While I have made this observation, I have not added this ignorance to the criminality I am dealing with.

45. This offender’s role in the burglary is one of the lesser roles. He did not damage the windows or the door. As the evidence stands, it cannot be said he searched for anything or ransacked or dishevelled the house. He appears to be the mule who takes an esky containing booty from the premises and starts it on its journey to Culgoa Street. He was not one of the planners, nor a leader.

46. The feature of aggravation relied upon as an element of the offence is one of “being in company”. That there were four intruders would more than fulfil this element and on that basis may amount to some degree of aggravation. However, the feature itself of “being in company” is a less menacing and hence less criminal feature on its own overall impact of the seriousness of the offence than other features of aggravation, such as being armed with a prohibited weapon or using corporal violence or depriving the occupier of liberty ( R v Huynh [2005] NSW CCA 220). The fact that empty premises were targeted rather than premises where someone was known to be present also has an impact on the seriousness of this offence, that is to say it would be less serious because there was no occupier present.

47. The Crown has conceded the offence was not part of a planned or organised criminal activity. I have indicated some evidence that could suggest the contrary but at the end of the day the concession by the Crown appears to be fairly made.

48. Having regard to the objective facts, the Crown submits that this section 112(2) offence should be placed at the lower range of possible like offences. My own view is that the offence itself should be regarded as more substantial than at the lower end of the range. However, it may be the Crown is really submitting this offender’s objective criminality in this aggravated burglary is towards the lower end of the range. If that is the import of his submission, then I agree with it.

49. I would not, on the objective facts, regard this offender’s criminality as reaching a mid range of seriousness. As is noted, it falls towards the lower end of the range.

Subjective features:

50. I turn now to the subjective matters; I am both entitled and required to do that. Not only am I sentencing for the criminal offence, but I am also sentencing this particular offender for it. Each offender coming before the Court varies from other offenders who stand or who have stood for sentence. Circumstances personal to an offender may offer to the Court some explanation and insight into the commission of this offence by this offender, or some reason why a more or a less sentencing outcome is appropriate.

51. This offender is a single, eighteen year old aboriginal male. Currently he is not in a relationship. He claims to be shy but apparently has expressed an interest in a Dubbo based girl. Since this incident, he lives and works in Castlereagh, near Penrith, where he lives with his mother and step-father. His own father lives in Brewarrina. At the time of his offending, David Nicholls was living in Brewarrina, as I understand it with his Auntie Liz Layland.

Education, employment and skills:

52. David Nicholls did his early schooling at St Mary’s. While at high school, he started to get into trouble fighting. He claims it was because others were racist towards him. He was not achieving well in grades either, I suspect. Ultimately, he was expelled from that school.

53. He came to Brewarrina to visit his dad. He completed Year 10 in Brewarrina. He got part time, unskilled work with the CDEP. After this offence he returned to the Penrith area. He secured employment with Muru Mittigar in September 2007 and has remained with them, working fulltime, as a fixed term team member. His tasks with Muru Mittigar include land rehabilitation, wood working and integrating with the public in cultural tourism and associated catering. He has undertaken some training, including a KEM certificate, learner-driving skills. His supervisor says he has established a high level of respect among the visiting public, business associates and other staff members because of his commitment to a job well done.

54. It would appear his employers take their responsibility as employers of this young man seriously. They appear to be fostering an interest in on the job training and financial management of his wages. Their occupational health and safety policy has a “Fit to Work” program requiring employees to submit to random blanket drug and alcohol testing. During his time at Muru Mittigar he has participated in and provided consistent negative results.

55. He has an interest in aqua golf that hopefully he will take from the aqua driving range to the golf course. It is likely he may have natural golfing skills. He is considering returning to study at TAFE. He should be encouraged to do so. At eighteen, he is on the threshold of adulthood that would be made richer and more absorbing for him with some further education. Education would also help advance his career and, perhaps, the opportunity of presenting himself as a model for other young aboriginal men.

General health:

56. At eighteen, David Nicholls presents as a healthy young man. There is nothing in his physical health profile that suggests he should have any difficulty rehabilitating.

Mental health:

57. There is nothing before me suggesting any mental health problems that would cause issues with his capacity to rehabilitate.

Drug and alcohol issues:

58. This topic was not covered very fully in evidence. What is apparent is that prior to his offending conduct there were issues relating to drugs. He had been smoking marijuana on the day of the offence. My sense is that he had been using marijuana regularly and over a substantial period. However, since the offence he has ceased used marijuana. That is confirmed by the random testing earlier referred to.

59. His alcohol consumption does not presently appear to be a problem, whether it was prior to the offence is unclear.

Character and antecedents:

60. David Nicholls is but eighteen. His character has barely had time to formulate. Since his offending he has taken steps to advance his rehabilitation. He has secured employment and ceased with cannabis. He has an interest in sports. He is well regarded at his workplace and, it would seem, among his family, he claims strong family support. He appears to be developing skills useful, both at the workplace and life outside work.

61. He has a father who presents as a role model in that he was a man who initially had problems with drink but is now employed in charge of a security patrol and is no longer plagued by alcohol problems.

62. His aunt is a co-ordinator for the Circle Sentencing in Brewarrina. These are role models who demonstrate Aboriginal people have important contributions to make in our society. Hopefully, Muru Mittigar is teaching this offender the same lesson and providing him a pathway to also contribute to our society in a valuable and constructive way.

63. Many Aborigines coming from Bourke before this court have histories of offending starting in the Children’s Court. David Nicholls, prior to this offence, had never been in trouble with the police or the courts.

Attitude to the offence:

64. Initially the offender sought to take advantage of his offending conduct by commandeering the rear wheel of the stolen motor cycle for his own vehicle. As the police began searching, I am satisfied he became conscious of his criminality and the likelihood that his involvement would ultimately be discovered. Unlike some of the others, he decided to be accountable for his offending conduct. He surrendered himself to the police and gave an account of his role. Initially it was not a full account. Subsequently, he returned and told police about his role with the esky and motor cycle wheel. I still have some reservations as to whether a complete account has been given but it is likely most of what occurred has been ventilated by him.

65. He says he regrets his involvement; I accept he does. He seems, at some level, to be able to empathise with Mr George’s loss, particularly of the war medals. He has given a written undertaking which is exhibited before me that he will assist with the further investigation and prosecution of the matter. As matters presently stand, that may require him to give evidence in this court against the oldest of the alleged participants. He may also be called upon to give evidence in the Local Court.

66. Given it is unlikely to be disputed that there was a breaking, entering and stealing at Mr George’s home, he will become a crucial witness in the Crown case against any alleged co-offender. It is likely a jury, properly instructed, will be satisfied that he was present at the scene, that he knew the identity of others at the scene. The issue for the jury will be whether he is honest and accurate in placing the relevant accused at the scene.

67. His credibility will necessarily be tarnished because of his failure to reveal at the first interview his role with the esky, and the motor cycle wheel if that was not done at the first interview. He is also likely to have his credibility further tarnished because of his lack of frankness about his reasons for taking the esky from the house.

68. On the other hand, he has given an account which the Crown can forcefully argue is basically correct. His presence in the prosecution case gives that case a strength previously lacking.

69. It is likely some members of the community, including his co-offenders, will resent his action in giving evidence. He will have to wear their disapprobation which may build to violence or threatened violence. On the other hand, it would seem police had already received some assistance from unidentified members of the community who will respect this offender for the courage it takes to accept accountability for his offending conduct and to assist the authorities bring to account other alleged co-offenders.

Plea of guilty:

70. This plea was indicated in the Local Court; it was a plea early entered. My understanding is that the indictment was required simply to address some anomaly in the charge.

71. But for the plea of guilty, I would have set an overall sentence of eighteen months imprisonment for this offence. I have discounted that by twenty-five per cent, that is four and a half months, making a total sentence of thirteen and a half months.

72. The benefit that I intend to give for the assistance will not be given as a discount. Rather, I will apply it by changing the nature of the sentence from one of fulltime custody to one of a suspended sentence.

73. There are other factors that have also impacted upon my decision to suspend the sentence, including:

He has no prior offending conduct, hence it would be with some confidence that I would expect him to keep the section 12 bond;

His rehabilitation has progressed since the offence and would be best achieved in the community based setting, particularly if possible involving his present employer;

At eighteen, it is appropriate he has a sentencing disposition that gives greater weight to rehabilitation than to punishment or deterrence.

Parity:

74. The juvenile RB has been convicted and sentenced by the Bourke Children’s Court to a seventeen month control order with a non-parole period of ten months. This was subject to a severity appeal which is presently part heard before me. It has been stood over to 6 June when it is anticipated he will be placed on a section 33(1)(c)(ii) bail for twelve months. In the event he successfully rehabilitates, the existing control order will be suspended.

75. RB was one of the leaders and initiators in this crime. He has a substantial criminal history, even though he is still a juvenile.

76. David Nicholls’ role is much less; his criminal antecedents are, to this point, untainted. Of course, Nicholls is being sentenced pursuant to the Crimes (Sentencing Procedure) Act 1999. He has also been given some benefit for the assistance given to police.

77. In all of these circumstances, strict parity does not apply (see R vLovelock (1998) 19 ALR 327).

Setting the sentence:

78. The maximum penalty for this offence, as earlier mentioned, is five (as said) years with, in appropriate cases, a standard non-parole period of five years.

Standard non-parole period:

79. When reviewing the objective features, I indicated this offender’s criminality fell below the mid range of seriousness. Having reviewed the subjective features, including the plea of guilty, the assistance to prosecution and investigation and the lack of prior criminal history, this offence falls outside the mid range of seriousness.

80. In any event, the standard non-parole period usually only applies to the evaluation of criminality after trial ( R v Way (2004) 60 NSWLR 168). The fact that a suspended sentence is being imposed also has its own statutory provisions in respect of setting a non-parole period. (See s12 (3) Crimes (Sentencing Procedure) Act 1999.)

Custodial history:

81. This offender has spent no time in custody in relation to this offence.

Deterrence:

82. I have considered the issue of deterrence. As earlier remarked, this offender is being sentenced as an adult. Usually greater weight is given to the concept of rehabilitation. Nonetheless, as was given in evidence yesterday, he has been arrested, interviewed by police, been before the Local Court, been before this Court, heard his conduct condemned by a judicial officer of this Court and has had all of that hanging over his head since 24 August 2007. Answers he gave yesterday indicate that these matters act as a deterrence for him. He is also to be sentenced to a term of imprisonment which will appear on his record until he dies. That should also be a feature of deterrence for him. The sentence of imprisonment itself will be deterrence for him, indeed it will be personal deterrence because, in the event that he should re-offend within the next thirteen and a half months, he will stand to be sentenced with a sentence the quantity of which he will know, namely thirteen and a half months imprisonment.

The Sentence

83. David Nicholls, you are convicted that you, on 5 or 6 July 2007 at Brewarrina, broke and entered the dwelling house of Mr John George situate at 16 Tarrion Street, Brewarrina and in that dwelling house did commit a serious indictable offence, namely larceny, in circumstances of aggravation, namely that you were in the company of a juvenile RB, another juvenile CB and Cecil McHughes.

84. For that offence, I sentence you to thirteen months, fifteen days imprisonment.

85. I will, upon condition that you enter into a bond pursuant to section 12 Crimes (Sentencing Procedure) Act 1999 to be of good behaviour, suspend that sentence. I would imagine that you would want to do that but I must formally ask you if you want to and you had better just have explained to you quickly by your counsel the consequences if you breach your bond.

OFFENDER: Yes, your Honour, I’d like to enter the bond.

HIS HONOUR: You want to enter the bond?

OFFENDER: Yeah.

HIS HONOUR: All right. The bond will have these conditions, that you will be of good behaviour. Do you know what that means?

OFFENDER: Yep.

HIS HONOUR: What does it mean?

OFFENDER: I’m not allowed to do nothing bad and get in trouble with the police.

HIS HONOUR: That is a broad way of putting it but includes getting into a fight, which you have a bit of propensity for, at least at school. It may mean driving without a licence, because I do not think you have one yet. It may mean smoking cannabis. And it certainly would mean doing something like this again. Now, you have to be of good behaviour for how long?

OFFENDER: Thirteen and a half months.

HIS HONOUR: So, if we start today and we are in the month of April, when are you likely to finish this bond?

OFFENDER: May of next year.

HIS HONOUR: Late May next year. So, how long have you got to stay out of trouble for?

OFFENDER: Thirteen and a half months.

HIS HONOUR: Until late May, next year. Not that I am encouraging you to get into trouble after that but this is meant to demonstrate to me and to the community that you will

stay out of trouble.

86. The offender has indicated that he is willing to accept the conditions of the bond which are that he be of good behaviour, that he give to this court his current address and that he answer any call up in the event that he is to be found or alleged to be in breach of the bond.

87. I do not, as presently advised, intend to have him supervised. I would like to see him stay in the present job he is in, they seem to me to be very good. Mr Crown, do you want to be heard on the question of supervision?

MAY: No, your Honour, I don’t.

HIS HONOUR: Mr Rickard?

RICKARD: No, your Honour.

HIS HONOUR: I am sufficiently impressed with you not to require you to be supervised. Supervision actually provides resources. They are pretty pressed, I do not think you

need the resources but that puts a greater responsibility on you, not a lesser one because if I happen to be wrong about that, you cannot come back to me later on and say, “Oh, you should have put me under supervision and I should have got help.” You are going to have to do this on your own, do you understand?

OFFENDER: Yeah.

HIS HONOUR: The bond can be entered before the registrar.

0O0