R v Orcher

[2015] NSWDC 347

District Court

New South Wales

Medium Neutral Citation:	R v Orcher [2015] NSWDC 347
Date of orders:	01 October 2015
Decision date:	01 October 2015
Jurisdiction:	Criminal
Before:	Cogswell SC DCJ
Decision:	For the offence of aggravated break and enter with intent to steal, a sentence of 3 years imprisonment to commence on 1 July 2015 and expire on 30 June 2018. A non-parole period of 1 year and 10 months is fixed to commence on 1 July 2015 and to expire on 30 April 2017. Form 1 taken into account.
Catchwords:	CRIMINAL LAW – Sentence – particular offence – aggravated break and enter with intent to steal – break in at service station – relevant factors – gravity of offence – lower end of the range of objective seriousness – limited degree of planning – aggravating factors – in company – vulnerable victim – prior criminality – criminal record despite youth of offender – subject to good behaviour bond at the time offence committed – medium to high risk of reoffending – nature and circumstances of offender – young Indigenous man – 20 years old – problematic drug dependency – Fernando principles – plea of guilty at earliest opportunity – 25% discount – special circumstances for adjusting ratio between head sentence and non-parole period – youth of offender – deprived background – Form 1 taken into account for 3 offences of larceny and damage to property
Legislation Cited:	Crimes Act 1900 (NSW), s 113(2) Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 32
Cases Cited:	R v Fernando (1992) 76 A Crim R 58
Category:	Sentence
Parties:	Regina (Crown) Twayne Orcher (Offender)
Representation:	Counsel: P Coady (Offender)   Solicitors: G Wasilewicz, Officer of the Director of Public Prosecutions (NSW) (Crown)
File Number(s):	2014/323653

Judgment

1. I am sentencing a young man for the crime of aggravated break and enter with intent to steal. The young man is aged 20 and his name is Twayne Orcher.

2. When he was charged with the offence he pleaded guilty and in due course I will discount the ultimate sentence by 25% because it is agreed that he pleaded guilty at the earliest available opportunity.

3. The first formal thing I should do is to convict Twayne Orcher of the crime of aggravated break and enter with intent. Then I should formally record that the offence is against s 113(2) of the Crimes Act1900. Parliament regards it as so serious that it has fixed a maximum of 14 years imprisonment to that crime.

4. When I am sentencing him, Mr Orcher has asked me to take into account, in the sentence that I fix, three other offences that he has acknowledged his guilt of. Two are larceny from a bottle shop and one is damaging the doors of a bottle shop causing some three and a half thousand dollars damage. I will take those three offences into account and I sign a certificate under s 32 of the Crimes (Sentencing Procedure) Act1999 certifying that I have done that.

5. A judge in sentencing someone needs to first say briefly what happened and then to make some kind of assessment of how serious an example this offence was of that crime. It is convenient to refer at the same time to the three offences that I have just certified that I will take into account, because they occurred at about the same time.

6. It all started in the evening of 2 November 2014. Twayne Orcher with someone else went to a bottle shop at a hotel in Tamworth and helped himself to two bottles of rum. He did not pay and ran away. The rum was worth about a hundred dollars. A few hours later he went back to the same bottle shop. This time he and his companion took a couple of bottles of rum each and ran away again. Their haul on that occasion was about $60. Still not satisfied, they returned close to 2 o'clock the following morning, 3 November 2014. This time they went to the Liquorland bottle shop in the Coles Supermarket complex in South Tamworth. They tried to break into it by throwing bitumen at the glass entrance doors. They were unsuccessful. But the doors were damaged beyond repair and had to be replaced. As I said, it cost a lot of money.

7. Then we get to the crime that I am actually sentencing Twayne Orcher for this afternoon. That happened about an hour later, at about 3 o'clock that same morning. He was with someone at her home in South Tamworth and he told her that he was going to the local service station. He took a bandanna with him as he left. He and another man went to the Coles Express Shell Service Station in South Tamworth. There was one employee on duty as the sole console operator. What Mr Orcher did was to throw “a large rock at the door, smashing the glass panel and going through into the shop narrowly missing” the employee who was on duty there. He saw them both outside and “became afraid and ran in to lock himself in the office.” Fortunately he was in control of the doors and was able to lock them. Not to be deterred Mr Orcher “was kicking at the smashed glass trying to enlarge the opening” that he had previously made with the rock. He was using his leg and when he was trying to pull the remaining glass panel out of the door it fell and hit him on the leg and gashed him badly. He had to run away and ended up in hospital. Police came and arrested him at the hospital.

8. Fortunately for the console operator, and unfortunately for Mr Orcher, the injury stopped him from proceeding any further with his attack on the structure of the service station and his attempt to no doubt get access to the till. Hence he was charged with aggravated break and enter with intent to steal. He did not actually steal, but that was clearly his intention. It was aggravated because he was in company.

9. When Mr Orcher committed this offence he was already on a good behaviour bond for malicious damage to property. After he was arrested he spent some 189 days in custody before being sentenced for another crime by Magistrate Holmes in the Local Court. The sentence for the other crime commenced on 12 May 2015. When I sentence him eventually this afternoon I will need to take into account that 189 days and determine when the sentence I impose should start.

10. Mr P Coady of counsel who appears for Mr Orcher submitted that the offence committed by his client is at the lower end of the range of seriousness for crimes of this type.

11. Ms G Wasilewicz, who appears for the Director of Public Prosecutions, acknowledged that it was in the lower edge of the range but pointed out that the console operator was a vulnerable person in the circumstances. I think she is right about that. To my mind the console operator is a person who falls within s 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999 - a person who was vulnerable because of his occupation. Indeed, “service station attendant” is specifically mentioned in that provision. The services offered by service stations are very important anywhere, but particularly so in the country. It is very convenient for everyone that some service stations remain open 24 hours a day. Here in Australia most of the service stations that remain open are attended by a member of staff. That member of staff is obviously vulnerable, but he or she is there to provide the service or convenience for the public. What Mr Orcher did is aggravated by the fact that he picked on a person who was in that vulnerable position.

12. On the other hand, as Mr Coady said, it was an impulsive offence which had very little planning. Ms Wasilewicz acknowledged that but pointed out that in going to the service station he did not have a lawful purpose in going there. Nevertheless, it seemed to be an enterprise that was decided upon very quickly.

13. An important factor that a judge has to take into account in sentencing anyone is obviously whether or not they have criminal record. Twayne Orcher has a criminal record, even though he is still only 20. He was committing crimes from his teenage years, included aggravated break and enter in company. As an adult, he was breaking into buildings and on one occasion assaulted someone causing actual bodily harm. He has been in gaol as an adult for stealing cars and shoplifting. He received sentences from the Magistrate for those last two crimes. Mr Orcher’s record means that he loses any benefit of leniency that he would otherwise receive for a good or clean record.

14. A judge also needs to take into account, in sentencing a person, personal information about their background. We have information about that from a pre-sentence report and from reports prepared by Juvenile Justice when he was sentenced in the Children’s Court some years ago. The author of the pre-sentence report said this in summary -

“Mr Orcher is the product of a disrupted upbringing, during which his mother was murdered. His foster grandmother, whom he continues to respect, apparently did her best to bring some stability into his life, and she regards him as a smart person who is an underachiever.”

The author went onto say that Mr Orcher “needs to address his drug addiction in a meaningful way, if he is to be rehabilitated.” The reference to drug-taking is Mr Orcher’s acknowledgement to the author of the report that before his crimes “he had been using a gram of ice per day at a daily cost of $650, and that the intention was to get money for more ‘ice’.”

15. The author noted that Mr Orcher, “was medicated as a child for ADHD, but he has not been treated for a mental health problem as an adult. Justice Health confirmed he is not on any medication.”

16. The author assessed Mr Orcher’s risk of re-offending as medium to high and noted that he has not to date responded to supervision within the community or into programs that might help with his drug dependency. He had apparently commenced using cannabis when he was quite a young boy and continued to abuse alcohol to the extent of having blackouts as well as amphetamine and methamphetamine over the weekend. This was a year or two ago. Mr Orcher’s schooling finished in year 8 when he was expelled for behavioural problems. People have been recommending that he get assistance for some time but he has not been taken up the opportunities.

17. Given these reports, Mr Coady realistically acknowledged that his client’s chances of rehabilitation could not be said to be good. At the most it could be said that he had a chance of rehabilitation, particularly because of his young age.

18. We have no current information about Mr Orcher’s mental health condition, as Ms Wasilewicz pointed out. Mr Coady reminded me of the matters set out by Wood J (as his Honour then was) in Fernando (1992) 76 A Crim R 58. They are matters relevant when a judge is sentencing an Aboriginal person who has had, as Mr Coady acknowledged in this case, “an appalling upbringing.” I refer in particular to the matters put by Mr Coady in para 19 of his written submissions about his client’s background. I agree that I should see his “drug use and offending conduct” in the context “of his extraordinarily underprivileged background.”

19. Ms Wasilewicz acknowledges the relevance of those matters referred to in the case of Fernando.

20. Both Mr Coady and Ms Wasilewicz acknowledge that there are special circumstances for making the parole period of the sentence that I fix, longer than the usual 25% of the overall sentence.

21. It seems to me, given where the case lies so far as objective seriousness and also in particular Mr Orcher’s age and his background, that an appropriate overall sentence for this offence is four years imprisonment. I will discount that sentence by 25% because of the fact that he pleaded guilty at the earliest available opportunity. Hence the sentence will be three years imprisonment.

22. The non-parole period for a sentence of three years imprisonment would normally be 75% of that term, or two years and three months. I think in this case there are special circumstances for allowing more time on parole, particularly Twayne Orcher’s age and his need to engage in rehabilitation services.

23. I therefore propose to fix a non-parole period of one year and ten months, or 22 months imprisonment. Theoretically I could commence the sentence from 11 February next year when the non-parole period for his current sentence expires, or at least backdate it from date for the 189 days. If I was to backdate it from 11 February, then by reference to MFI 3, the sentence would commence on 6 August 2015. If I was to backdate it from today, the sentence would commence on 26 March 2015. Backdating it from today would therefore mean that he serves no time for the sentences imposed by the Magistrate.

24. I propose to backdate his sentence to commence on 1 July 2015. His sentence of three years will therefore commence on 1 July 2015 and will expire on 30 June 2018. The non-parole period of one year and ten months will commence on 1 July 2015 and expire on 31 April 2017. After that the balance of the sentence, one year and two months, will commence on 1 April 2017 and expire on 30 June 2018.

HIS HONOUR:   I am going to formally sentence you now - have I made a mistake?

WASILEWICZ: Yes sorry your Honour, I think that your Honour said 31 April; I think you meant 31 March is the expiry of the non-parole period. Or alternatively - I don't think that’s right, I think it should be 31 April to 1 May--

HIS HONOUR: Should be 31 April--

WASILEWICZ: As opposed to 1 April.

HIS HONOUR: No it should be 30 April 17, should it?

WASILEWICZ: Yes your Honour.

HIS HONOUR: Have I got that right?

WASILEWICZ: Yes it’s 30 April…

HIS HONOUR: Yes.

COADY: --I think your Honour said 31 April.

HIS HONOUR: I did, wrongly, thank you. I am going to sentence you Mr Orcher, you need to stand-up.

OFFENDER: I can't.

COADY: He’s locked in and can't your Honour.

HIS HONOUR: You cannot, I am sorry about that. We will fix you.

25. I fix a non-parole period of one year and ten months. I have backdated that to commence on 1 July this year. So that non-parole period of one year and ten months will expire on 30 April 2017. After that, the balance of your sentence is one year and two months, it commences 1 May 17 and expires on 30 June 18. So your overall sentence is three years. It started on 1 July 15 and your overall sentence finishes on 30 June 18.

HIS HONOUR:   Just have a seat for a moment. In fact you can put the thing down again, that is fine. It is three years, so I direct his release on parole do I?

WASILEWICZ: Yes your Honour.

26. The next formal order I make is that under s 50 of the Crimes (Sentencing Procedure) Act 1999. I make an order directing the release of Mr Orcher on parole on 30 April 2017. The conditions of his parole are these -

1. that he be of good behaviour;

2. that he notify the Community Corrections Service of any change in his address;

3. that he attend Court if he receives a notice to do so;

4. that he accepts supervision from the Community Corrections office and accept all reasonable recommendations and directions by officers of that service, including referral to alcohol and other drug relapse prevention programs including residential rehabilitation as well as vocational assessment and further education and training.

27. In addition, I recommend to the Commissioner for Corrective Services that Mr Orcher be considered for referral to the Custodial Intensive Drug and Alcohol Treatment program and or the Ngara Nura Program.

HIS HONOUR:   Are there any other orders that I need to make before I explain the sentence to your client?

WASILEWICZ: Your Honour I seek to withdraw sequences 4 and 5.

28. Leave is granted to withdraw sequences 4 and 5--

WASILEWICZ: Sorry 4 and 8.

29. Four and 8.

HIS HONOUR: Any other orders I need to make?

WASILEWICZ: Not from me your Honour.

COADY: No your Honour.

HIS HONOUR: Twayne Orcher, stay seated down there. Just so that you are very clear, you have got your three-year sentence, partly overlaps the one the Magistrate gave you when you blew up at him. I backdated your sentence to 1 July, your overall sentence is three years after that, 30 June 18. You are in gaol from 1 July until 30 April 2017. I have ordered you to be released on 30 April 2017 onto parole and I have made it a condition that you behave yourself on parole - you have got to do that, if you get into trouble then you just go straight back in. If you change your address you have to let them know so they know where to track you down and if you get a notice saying come to Court, you come to Court. All right. The most important part of it is that you let Community Corrections supervise you. Do you understand that? You have had them supervise you before on a behaviour bond?

OFFENDER: Yep.

HIS HONOUR: Yes. They know what they are doing, they are good at what they do. They are very experienced and in particular they are going to help you with drug and alcohol, perhaps vocation, jobs, perhaps education - things like that. Your grandmother reckons you are pretty bright and you do not necessary use all that. All right. She reckons you are pretty bright and you have got a good future. Now Community Corrections are going to help you along towards that future and I am hoping this is the last time you are going to be in Court. You are only 20, you have got a long way to go. Do you understand that? It is over to you. Good luck.

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Decision last updated: 04 February 2016