R v Paul Henderson

[2008] NSWDC 363

CITATION:	R v Paul HENDERSON [2008] NSWDC 363
JUDGMENT DATE:	17 March 2008
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	For the offence committed on 31 October 2006 - non-parole period of 1 year 3 months, balance of term 1 year 3 months. For the offence committed on 6 October 2006 - non-parole period of 1 year 9 months, balance of term 1 year 9 months.
CATCHWORDS:	CRIMINAL LAW - sentence - aggravated break enter and steal - plea of guilty - form 1 offences - prior criminal record - pre-sentence report - psychological report - psychiatric disorders - no wanton destruction of property - offences committed whilst under influence of drugs - no weapon - limited planning - property stolen did not have substantial value - reasonable propects of rehabilitation - moderate risk of re-offending
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 s 5, s 32
CASES CITED:	Regina v Marshall [2007] NSWCCA 24
PARTIES:	Regina Paul Henderson
FILE NUMBER(S):	2007/11999
COUNSEL:	Mr Robinson
SOLICITORS:	Director of Public Prosecutions

JUDGMENT

1. I am sentencing Paul Henderson for two offences. Both offences are against the Crimes Act 1900. Each of them is the same offence but committed on different occasions. The offence is called aggravated break enter and commit serious indictable offence. In Mr Henderson’s case the serious indictable offence, each time, was stealing. In sentencing him, two matters have developed as issues for me to consider, perhaps a little more significantly than the other issues in the case.

2. The first is where this offence lies in the range of objective seriousness. That is the language which the Courts use. What that means is just how bad these offences were. I need to assess whether they are middle of the range offences or lower range offences. The second issue, which is more prominent than the other, is the one concerning Mr Henderson’s rehabilitation. Associated with that are his prospects of re-offending. I will come to both those issues a little later.

3. First it is important to record just what these offences are. As I said they are both called break and enter and steal. The first offence was committed on 6 October 2006 at Werrington. Number 16 Burton Street was where Stephen Mackenzie lived with his wife and other family members. Mr Henderson was addicted to drugs and needed money to buy drugs. He decided to obtain this money by breaking into other people’s houses, stealing their property and presumably selling it to raise money for his own drug taking. On this occasion he got into the Mackenzie’s house via a back door. He went around the rooms on the ground floor. He stole two laptop computers, two mobile phones, a camera, a discman and other items, including credit cards. The offence occurred somewhere between 3.30 in the morning and ten to 7 in the morning. Mr and Mrs Mackenzie and their three children were asleep upstairs. Mr Henderson left a fingerprint.

4. The second offence was also committed in Werrington. He committed this offence about three weeks later on 30 October 2006. Once again he broke in at night. This time somewhere between 10.30pm and 6am. This house was occupied by David Cummins who lived there with his partner, Maree Carter and two children, Adam Carter and Angela Cummins. He got in via a back door again. He got in because he used a garden shovel to lift the door. He went around three rooms downstairs. A wall unit in the living room was opened and ransacked. He stole a Nintendo Gameboy, another laptop, a video camera, a digital camera and an older model laptop computer. Mr Cummins and Ms Carter were alerted when Ms Carter went downstairs. Mr Cummins heard her yelling “The house has been done over.”

5. Returning to the first offence at 16 Burton Street Werrington, I should have added that amongst the things which Mr Henderson stole was a blood glucose reader and a bag with university notes belonging to one of the younger people in the household. They had been discarded later on and were recovered.

6. The value of the property stolen from the first house, that is 16 Burton Street, was about $7,500. I do not appear to have a value for the property stolen from the second house which, if I didn’t say, was located at 2 Judith Close, Werrington.

7. Mr Henderson was not arrested until 2 March 2007, some five months or so after these offences. He was arrested after a police pursuit. He was riding a motorbike, was pursued by police and eventually arrested after he dismounted, burst into someone’s home and hid under a bed. That sequence of events which lead to his arrest also lead to a series of charges against him. Those charges have gone on to a document called a List of Additional Charges. That list is a list provided for by s 32 of the Crimes (Sentencing Procedure) Act 1999 and is known as a Form 1. There are four offences: knowingly drive a stolen conveyance, possessing implements to enter a conveyance, unlawful entry of lands and possessing a prohibited drug. It will become apparent in my sentencing Mr Henderson that I have taken into account those four offences, when sentencing him for one of the offences and I have just now signed the certificate accordingly.

8. Mr Henderson has a criminal record. After some events on 13 November 2004 he was sentenced by the Penrith Local Court on 14 December 2004. Those events gave rise to four charges: common assault, destroying or damaging property, armed with intent to commit an indictable offence and malicious wounding. It is not necessary to record the sentences imposed by the Local Court because he successfully appealed to this Court. On 14 February 2005 this Court sentenced Mr Henderson to a series of gaol terms, the longest of which was eighteen months with a non-parole period of six months.

9. Also significantly on his record, arising from some events on 28 October 2005 that I do not have the details of, he was again sentenced by the Penrith Local Court on 5 June 2006. Whatever happened on 28 October 2005 gave rise to a charge of common assault. I say that is significant because the magistrate at the Local Court on 5 June 2006 put Mr Henderson on a bond to be of good behaviour under s 9 of the Crimes (Sentencing Procedure) Act. That bond was for 12 months. It follows that at the time that he committed the offences that I am sentencing him for Mr Henderson was on conditional liberty. That is, a Court had released him into the community on the understanding that he would use the bond to rehabilitate himself, but instead he committed the offences which I am sentencing him for today.

10. A pre-sentence report was prepared by the Probation and Parole Service for Mr Henderson. It was signed on 14 March 2008, so that it is very recent. It records some significant items in Mr Henderson’s personal history. It notes that his upbringing was marked and disrupted by conflict in the family, running away from home, behavioural problems, expulsion from school and drug use, all at a very young age. His personal history includes periods of homelessness where he had no permanent residence, but stayed with friends. Significantly the pre-sentence report notes various psychiatric disorders. It notes a diagnosis of Asperger’s Syndrome, obsessive compulsive disorder, conduct disorder and schizophrenia. He was on medication from a young age. His medication was disrupted by his behaviour and expulsion. He ended his schooling aged about thirteen or fourteen. Since leaving school he has had only one job. It was working as a labourer, which job he had obtained on his own initiative but left after six months. He apparently found the physical work too demanding.

11. Mr Henderson was born on 21 February 1986, so that he has recently turned twenty-two. The pre-sentence reports notes the recent diagnosis of schizophrenia and that Justice Health has prescribed anti-psychotics and anti-depressants. In addition his personal health history includes a serious bike accident (that is a pushbike) when he was knocked off by a car, apparently not wearing a helmet. He suffered multiple head and facial injuries. He still has plates in his face.

12. He has been in a relationship for the last four years with one child, three year old Cody.

13. Another significant aspect of Mr Henderson’s personal history is drug use. He has been smoking cannabis since he was thirteen and by the age of sixteen or seventeen he was injecting amphetamines. He developed a habit which cost him some $500 a day. He acknowledged that the offences were committed whilst he was under the influence of drugs. The Probation and Parole officer was able to record that Mr Henderson demonstrated a degree of victim empathy. But he also notes that it is unfortunate that despite being on remand for over a year, at the time of the report Mr Henderson had failed to access any alcohol or other drug services education. It thought that addressing Mr Henderson’s substance abuse would be imperative, if he is to avoid further offending. Given his mental health issues it also noted a requirement for ongoing help and medication. It noted that Mr Henderson’s response in the past to supervision was borderline with a failure to attend all the group sessions, by that I mean he missed at least one.

14. Tendered as part of Mr Henderson’s case was a psychological report from Ms Alex Edgar dated 4 March 2008. Ms Edgar appears to have a good deal of experience as a psychologist in corrective services institutions, both in this State and in the UK. It noted that Mr Henderson has a brother who has bi-polar disorder. It noted an improved relationship with his parents. It recorded much of the personal history which is noted and I have noted from the pre-sentence report. Mr Henderson apparently told Ms Edgar that his personal relationship with his partner was turbulent and that they had broken up several times. It noted his understanding that he is not a very good father at this stage. It reported him wanting to continue his relationship with his partner and a keenness to remain involved in his son’s life. It noted that he was taking an anti-depressant medication and an anti-psychotic medication. It noted that Mr Henderson, before being prescribed the anti-psychotic medication, had been experiencing auditory and visual hallucinations. They were present at the time of his offence. It noted the history of drug use. It also noted what appears to be a significant factor in this case, that is that he has abstained from all illicit drugs for the last year in custody. He says that he does not wish to resume because of his son and that he is ashamed of his drug affected behaviour and his current offences.

15. It states a willingness to engage in intervention to assist. Once again it noted some contrition and quoted him as saying “I’ve wrecked their lives,” referring to the victims of his offences. It noted that his verbal intelligence was borderline, his performance intelligence low average and his full scale intelligence borderline. Scores on a personality test recorded features which the psychologist described as depressive, aggressive, dependent and avoidant, anti-social and passive aggressive. As well as self-defeating and schizoid. Another test noted extremely severe levels of depression. It noted a moderate to high risk of re-offending after a particular self-appraisal questionnaire.

16. It noted a continuing use of maladaptive coping strategies because of a failure to learn healthy strategies as a young man. It noted his vulnerability to relapse as remaining high without significant support. It notes that since his criminal behaviour is largely a product of his drug use and peers, resolving his drug issues is the highest treatment priority. It noted a willingness to commit to drug rehabilitation and noted that he has applied for relevant programmes.

17. The psychologist recommended that on parole he engage in employment or training that would encourage a more positive social routine, with opportunities to meet social people. It recommended a programme called ‘The Personal Support Programme’. It thought that on release a support network, employment and housing arrangements were very important.

18. I heard evidence from Mr Henderson himself who was called as a witness by Mr Robinson who appeared on his behalf. Mr Henderson described the offences as I have already described them. He noted that the contents of both the psychological report and the pre-sentence report were true. He appeared to be hearing voices and seeing things at the times of the offences.

19. He said that he had filled out a form for a drug an alcohol programme in custody. He filled out the form sometime before Christmas but has had no response. This may be, I infer, because he is on remand and not yet under sentence. He is prepared to undertake a residential rehabilitation programme on release, including the personal support programme.

20. He acknowledged that he had been very successful at sport, as a boy in primary and middle school, but had not engaged in sport for many years. He acknowledged the impact which the offences would have had on the lives of the victims of his offences. He appeared to me to appreciate genuinely the impact which he has had. He said that in the future he proposed to live with his partner and look for a job and look after his son. He proposes to stay on medication. Whilst in custody he has said he has felt good. Two factors influence that. One is that he is no longer on illegal drugs, the second is that he is on a regime of prescribed medication to assist him with his medical conditions.

21. He is visited both by his parents and by his partner and their son. He did not apply earlier for a drug and alcohol programme because he felt embarrassed about asking. Now he has made an application.

22. Mr Robinson also called Bruce Henderson, Mr Henderson’s father. Mr Henderson Snr described graphically the difference between his son before he went into prison and now. He says that it was like chalk and cheese. Off drugs and on medication his son, he said, is able to converse intelligently. There are no, as Mr Henderson Snr says, taboo topics. His son has obviously had time to reflect and has demonstrated a real passion to be a father and a role model for his son. In addition he has realised the impact which his offences have had on the extended family.

23. Mr Henderson Snr confirmed his son’s mental history commencing shortly after he was born. He has seen a range of different psychologists and psychiatrists throughout his life. His brother has a serious bi-polar disorder, but his now stabilised. Mr Bruce Henderson’s own father was with the Air Force and working at Maralinga at the time that there were tests for atomic bombs there. The grandfather was apparently exposed to some toxic environment. Mr Henderson Snr confirmed that his son was an outstanding athlete as a boy. He said as a father he could see the glimmer of a great kid in his son. He and his mother, both of whom are very supportive, can see their son turning a corner. He refers to his passion for being a father, his honesty and integrity in talking about his life and the fact that he appears to be taking ownership for what he has done. He has a supportive psychologist whom he has been seeing for a year or so.

24. It is important to make some findings about this case. The first and most important findings that I need to make are about how bad these offences were. As I said, the courts refer to this as the objective seriousness of the offences. I have had the benefit of detailed, relevant and focused written submissions from Ms Sawagid, who appears for the prosecution and very helpful oral submissions from Mr Robinson. I have determined that these crimes lie in the lower end of seriousness for these kinds of offences.

25. In reaching that conclusion I take into account the following factors. First, there are serious indictable offences which are far worse than larceny, which were the offences committed by Mr Henderson. That is a factor which I may take into account and is referred to specifically in Regina v Marshall [2007] NSWCCA 24. At [35] Howie J, with whom the Chief Judge at Common Law and Simpson J agreed, said that the section creating this offence “can cover a very diverse range of offending.” His Honour noted that in the category of serious indictable offence larceny

“ is punishable by a term of five years and, therefore, is, on its face, at the lower end of seriousness for the type of offences that would fall within s 112(2). This might suggest that any offence under s 112(2), where the serious indictable offence is stealing, cannot be within the mid range of seriousness because there are many more serious offences that may give rise to a s 112(2) offence. For example, the offence committed in the premises might be a sexual assault committed on a child or an armed robbery. ”

26. Secondly the offences could have, but did not, involve any wanton destruction of property although this is qualified somewhat by the ransacking of part of one of the houses.

27. Thirdly, I take into account that the offences were committed while Mr Henderson was affected by amphetamines. That is not to say that that factor is, of itself, automatically mitigating but as the then Chief Judge at Common Law, Wood J said in Regina v Henry (1999) 46 NSWLR 346, drug addiction may be taken into account as a factor relevant to the objective criminality of the offence. It can throw light on the impulsivity of the offence and the extent of planning and the state of mind of the offender in exercising judgment. In this case the offences were impulsive, they were accompanied by a limited degree of planning and very little judgment was exercised in their commission.

28. Next, I take into account that Mr Henderson was alone and carried no weapon.

29. Next, I take into account, so far as planning is concerned, that there was some but a very limited degree of planning involved in these offences. They were opportunistic.

30. Next, I take into account that there was, fortunately for Mr Henderson, no confrontation with any of the occupants of the houses.

31. Next, I take into account that the property stolen did not have a substantial value, on the other hand the value was not petty.

32. Next, I take into account that Mr Henderson’s well established mental health problems mean that the factor of general deterrence is of less significance in sentencing him in this case. His mental health history is genuine, significant and means that, as I said, general deterrence is of less significance.

33. On the other hand, so far as objective seriousness is concerned, I take into account that these offences were committed whilst Mr Henderson was on conditional liberty. He was on his bond at the time. In addition he had a criminal record. The criminal record was not for these kinds of offences, so that as an aggravating feature that is not so serious. But nevertheless he has had occasion to come before the courts before today for breaches of the law.

34. These various findings which I make regarding the degree of seriousness of these crimes lead me, as I say, to the conclusion that they fall within the lower range of objective seriousness. They are, however, far from the lowest in the range. That is because of the fact that the offences were committed whilst he was at large, having successfully convinced a court, probably through a legal representative, that he should be permitted back in the community. He abused the court’s trust and put at risk the wellbeing of members of the community by breaking into their homes.

35. I am particularly taken by what is regarded as a normal factor associated with breaking and entering as an offence, that is the inconvenience and trauma caused to the victims. This case is not exceptional. There was no particularly significant trauma or inconvenience. But it is important to record the trauma which must have been caused to the victims of these offences, one of whom was a university student who lost her notes for a period of time, until they were recovered. Another man lost his computer containing personal information. The theft of all of the computers and the cameras may have involved the temporary or permanent loss personal, valuable information. This is why the courts regard these offences as so serious.

36. I turn now to factors which can tend to reduce the sentence which I might impose. One is that Mr Henderson has expressed remorse, that is contrition for his behaviour. He has gone into the witness box and has expressed this under oath. I accept that remorse as genuine. It is reflected in the evidence of his father, as well as in both the psychological report and the pre-sentence report.

37. Next I take into account that he has pleaded guilty. This facilitates the course of justice. In New South Wales we are able to take into account that it also has a practical impact on the length of time required by the Courts to administer justice and on the fact that the victims do not have to attend to give evidence. Mr Robinson realistically acknowledges that his client’s plea was not at the earliest opportunity. I propose to take into account that plea of guilty in the region of 15 to 20 percent. That will be reflected in specific reductions which I will refer to shortly.

38. Next I come to the second significant issue which I referred to at the commencement of these remarks, namely Mr Henderson’s rehabilitation and prospects of re-offending. Mr Robinson invited me to find that his prospects of re-offending were moderate, rather than high and that his prospects of rehabilitation were reasonable, rather than poor. With some reservations I accept both submissions.

39. Standing back and looking at the evidence as recorded by the psychologist and the Probation and Parole Officer, the less favourable findings are open and available to me. However, the reason that I accept Mr Robinson’s submission is the evidence which he has called from his client and from his client’s father. That is supported by the fact that Mr Henderson has been in gaol and off drugs for the last twelve months. In addition he has been on stabilising medication. As I said his father graphically described his son’s improvement over the last twelve months. Mr Henderson himself describes his own improvement.

40. I do not regard his rehabilitation prospects as good but as reasonable. I do not regard his risk of re-offending as low but as moderate. Mr Henderson is at risk on both fronts. He needs, as the reports say, a lot of supervision and a lot of support. Mr Robinson submitted that, in fixing any non-parole period, there were special circumstances which I could or can take into account under s 44 of the Crimes (Sentencing Procedure) Act so that I can fix a balance of the term of each sentence which will exceed one third of the non-parole period. He said those special circumstances included his client’s improvement away from illegal drugs and on prescribed drugs, his client’s mental health issues, need for supervision and his client’s age.

41. Ms Sawagid did not contest that and I regard that as a very reasonable position to take because the finding of special circumstances, in my opinion, is clearly available and I propose to make it.

42. I find in accordance with s 5 of the Crimes (Sentencing Procedure) Act that there is, in this case, no alternative to a period of full-time imprisonment.

43. For the offence in respect of which I take into account the offences on Form 1, I had intended to sentence Mr Henderson to two years non-parole period with an additional term of two years. However, because of his plea of guilty on that offence, I propose to reduce both the non-parole period and the additional term by three months, to twenty-one months respectively. In other words, instead of an overall sentence for that offence of four years I propose to impose an overall sentence of forty-two months, that is three and a half years.

44. For the other offence, the one in respect of which I do not take into account the offences on the Form 1, I had intended to sentence Mr Henderson to eighteen months non-parole period with a balance of the term of eighteen months. However, because he has pleaded guilty I have reduced that sentence to a sentence of fifteen months non-parol period with fifteen months balance of the term. That is, instead of an overall sentence of three years for that offence, I propose to impose a sentence of two and a half years because Mr Henderson has pleaded guilty.

45. In fixing the overall sentences I am aware that each of the offences carries a maximum of twenty years imprisonment. I am also aware that each of the offences attracts a standard non-parole period of five years. I am departing from the standard non-parole period of five years in each case because of my finding that the offences were in the lower range of seriousness for these types of crimes. In addition I have taken into account his remorse and prospects of rehabilitation.

Ms Sawagid just before I sentence Mr Henderson the Form 1 offences are attached to which of the two, it doesn’t really specify. I thought maybe the ones committed on 31 October, but I might be wrong. It just says “ for the offence of aggravated break enter and commit serious indictable offence ”, which of course they both are?

SAWAGID: I believe it was Burton Street your Honour.

HIS HONOUR: And Burton Street was?

SAWAGID: The sixth.

HIS HONOUR: The sixth, okay.

46. For the offence of aggravated break enter and steal committed on 31 October 2006 at 2 Judith Close, Werrington, I set a non-parole period for the sentence of one year and three months to commence on 2 March 2007 and to expire on 1 June 2008. The balance of the term is also one year and three months to commence on 2 June 2008 and expire on 1 September 2009. The total sentence is therefore two years and six months commencing on 2 March 2007 and expiring on 1 September 2009. The balance of the term exceeds one third of the non-parole period because of the special circumstances which I have found.

47. In respect of the offence committed on 6 October 2006 at 16 Burton Avenue Werrington I first take into account, in sentencing you for that offence, the offences listed on the Form 1. For that offence I set a non-parole period for the sentence of one year and nine months to commence on 2 June 2007 and to expire on 1 March 2009. The balance of the term is also one year and nine months, commencing on 2 March 2009 and expiring on 1 December 2010. The total sentence is therefore three years and six months commencing on 2 June 2007 and expiring on 1 December 2010. The balance of the term exceeds on third of the non-parole period because of the special circumstances which I have found in this case.

ROBINSON: Your Honour I’ve checked the figures there and they certainly are correct on my calculation.

HIS HONOUR: Okay. Now one thing I need to, well Ms Sawagid?

SAWAGID: Yes I think so your Honour.

HIS HONOUR: You think so?

SAWAGID: Yes.

HIS HONOUR: All right. In a moment I’ll discharge my statutory obligation of explaining the sentences to Mr Henderson. But I don’t think there are any other orders that I need to make because it’s over three years, is that right?

Am I right about that?

ROBINSON: I believe so yes, any conditions of parole would be set by the State Parole Authority, yes.

HIS HONOUR: I might make some recommendations.

ROBINSON: Yes my practice indicates yes it is for the Parole Authority to set the conditions.

48. First your sentence commences on 2 March 2007, so I’ve back dated your sentence to commence when you were arrested and you’ve been in custody all that time, so it started back then. Do you understand that?

OFFENDER: Yes.

49. I’ve staggered the sentences so that one of them starts whilst the other one’s still running and the effective non-parole period is two years. The day on which it appears on the information that I have, and that seems to be accurate, you will become eligible for release on parole will be 1 March 2009. So just under a year from now you will be eligible for parole. I do not fix parole, the Parole Authority does. You have got two non-parole periods, one of them commenced back on 2 March last year and runs up to 1 June this year and that is fifteen months. But the other one, which is one year and nine months, commenced on 2 June last year and therefore will run until 1 March next year and that is when that later on expires. 1 March next year you are eligible for parole.

OFFENDER: Yes.

50. I direct that a copy of the pre-sentence report, which is Exhibit B in these proceedings, and a copy of the report of Ms Alex Edgar which is Exhibit 1 in these proceedings, be placed with Mr Henderson’s papers and accompany him into custody and that they be made available to the Parole Authority at the time that they are considering Mr Henderson’s eligibility for parole. I’ll return Exhibits A, B and 1 as well as MFI 1 and MFI 2 for my associate to place on the file.

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