R v Pincham

[2011] NSWDC 49

District Court

New South Wales

Medium Neutral Citation:

R v PINCHAM [2011] NSWDC 49

Hearing dates:

15 April 2011

Decision date:

15 April 2011

Jurisdiction:

Criminal

Before:

Berman SC DCJ

Decision:

Effective non-parole period of three and a half years with a head sentence of five and a half years.

Refer the offender back to the Drug Court

Catchwords:

CRIMINAL LAW - Sentence - Form 1 - Break, enter and steal - Drug court referral - Offences committed on day of release from custody

Legislation Cited:

Crimes (Sentencing Procedure) Act

Category:

Sentence

Parties:

The Crown
Graham John Pincham

Representation:

Director of Public Prosecutions
Legal Aid Commission

File Number(s):

DC 2010/00256680

SENTENCE

1. HIS HONOUR: Graham John Pincham is a man who has spent more than half his life in custody. That is a terribly sad thing to say about a human being but it is accurate in Mr Pincham's case. He is a man who has regularly committed offences, after becoming addicted to drugs at a relatively young age. Not only has he regularly committed offences, he has regularly been detected committing them. Each time he has been released from custody thus far he has committed further offences, usually as a result of his drug addiction. However, rather than simply locking him up for longer and longer periods of time there is, at this relatively late stage of Mr Pincham's life, a glimmer of hope.

1. Mr Pincham was released from custody on 21 March 2010. The first of the offences for which I must sentence him was a break, enter and steal committed on that very day. In the following days he committed three other offences, one on 25 March, one on 27 March and one on 2 April. When sentencing him for the last of those matters he asks that I take into account two other less serious matters on a Form 1. I note that there was no certificate under s 35A of the Crimes (Sentencing Procedure) Act, but given that the offender was committed for sentence before the commencement date of that provision I am satisfied that one is not necessary.

1. As well as these four offences, the offender committed two other offences on 21 March, that is the day of his release. He has been sentenced on those offences in the Local Court; on each offence he received a concurrent term of imprisonment of two years as a fixed term to date from 6 April 2010, the day he was arrested. I gather that the reason that these matters were not all dealt with together is because police were only aware at the time he appeared in the Local Court of those two matters, and information became available later suggesting his involvement in the other four for which I must sentence him.

1. After Mr Pincham's release from custody on 21 March he went to stay in a backpackers hostel. It seems that he began using drugs almost immediately and he committed the four offences for which I must sentence him and the other two dealt with in the Local Court under the influence of those drugs. He has a modus operandi involving breaking into commercial premises and stealing what he could. He did not obtain significantly large sums of money, the most I think he got was $4,000 when he broke and entered the premises of Sparkles Cup Cakery, when he stole a safe containing $4,000. It is to be noted that these offences all involved commercial premises rather than people's homes. It is notorious that victims of break, enter, steal offences, where that offence involves breaking into their homes, experience significant consequences knowing that the security of their home has been broken. But those matters do not arise to the same extent when offences involve commercial premises, as do Mr Pincham's.

1. The fact that he has spent more than half his life in custody would indicate Mr Pincham has a lengthy criminal history, mostly for offences of this kind. He lived around Ultimo and Glebe as he grew up. His father was a wharfie and was very violent towards him. As is quite common in those situations the offender was very close to his mother. His parents have now died. He was in custody when his father died, although he was able to go to his father's funeral. He began experimenting with drugs and alcohol in his mid-teens and as a result of committing offences at that time he was sent to a juvenile detention centre for about twelve months. When he left that detention centre he gained some work as a storeman and packer at Glebe. He worked there for some time but was introduced to heroin which has proved to be the offender's downfall. Drug related offences have been a recurring feature of his adult life. There have been attempts at rehabilitation in the past but, as is obvious, none have been successful. He is clearly institutionalised. He has spent so much time in custody that he has lost the ability to operate effectively as a free man in the community. The clearest indication of the extent to which he has been institutionalised is the circumstance that on the very day he was released from custody he committed three break, enter and steal offences. In the past, as is clear, release on parole has simply provided the offender with an opportunity to commit offences earlier than he would otherwise have. In those circumstances it would be hard to argue against the proposition that the offender should simply be kept in custody for as long as the objective gravity of his offences would allow in order to give the community a break from his offending. But things have recently changed with the result that there is now a glimmer of hope for the offender's future. After he was sentenced in the Local Court he was referred to the Drug Court and inducted into the Compulsive Drug Treatment Correctional Centre. He has at last been doing well as far as his drug problem is concerned. The evidence suggests that apart from his drug problem Mr Pincham has much to contribute. He likes to be kept busy, he likes to work, and the only problem, and of course it is a significant problem in his life, is his drug addiction. Thus, if he can overcome his problem with drugs there is a very good chance that he will overcome his problems with committing criminal offences. Mr Hutchinson appropriately relies on the good work that Mr Pincham has done whilst under his compulsory drug treatment order as suggesting a need to find special circumstances in this case. I will do that because if there is to be any hope for Mr Pincham's future, it does involve him being given substantial support whilst on parole and supervision for an extended period.

1. The offender wrote a letter to the Magistrate who sentenced him in which he indicated that he has now changed his ways. He speaks of the benefits that he would see through receiving a compulsory drug treatment order and as I have noted the sentence imposed by the Magistrate enabled him to be inducted into the program. However, as I must now sentence him for four other offences and as I must clearly fashion orders that see him serving a longer period in custody than the Magistrate imposed, an issue arose as to whether I should take into account the need for Mr Pincham to continue receiving the treatment he has been receiving. To be very specific, the issue arose as to whether I should take into account various thresholds and cutoffs which might see Mr Pincham removed from the program if the sentence I imposed upon him exceeded a certain length.

1. It is the Crown's position - and I do not understand Mr Hutchinson to seriously argue against it - that I should determine the appropriate sentence according to law, taking into account the objectivity gravity of the offences and the mitigating factors and then after having determined the sentence I would impose only then consider whether that would make it likely that Mr Pincham could continue with his compulsory drug treatment order. I think that is probably correct but fortunately, as I understand it, the sentence I will shortly announce does mean that Mr Pincham is eligible to continue his compulsory drug treatment order.

1. As is clear, the offender was on parole at the time of these offences, and that is a significant aggravating feature. He pleaded guilty at the earliest opportunity and so I will reduce the sentence I would otherwise have imposed by twenty-five per cent to reflect that circumstance. He has expressed his remorse in a letter to me. But I cannot find that there are good prospects of rehabilitation or that the offender is unlikely to re-offend. Of course his criminal history is a substantial impediment to a finding being made in the offender's favour on those matters.

1. I have applied the principle of totality but I have also decided that I should impose sentences such that it could not be said that the offender goes unpunished for any individual offence. Each offence is a separate act of criminality, which, in my view, should result in an extension to the period the offender must serve in custody. On the other hand, the overall sentence is appropriate to his overall criminality. I note that the sentence I will impose is to some extent accumulative on the sentence imposed by the Magistrate. As a matter of mathematics this will mean that the variation from the statutory ratio of non-parole period to head sentence is less than it would otherwise have been if I was not accumulating. I simply note that I have taken that matter into account. But I am satisfied that the effective non-parole period I will shortly announce is the least which properly reflects the objective gravity of the offender's conduct.

1. The sentences I impose are as follows: For the offence committed on 21 March 2010 the offender is sentenced to imprisonment for a fixed term of two years to date from 6 April 2011. For the offence committed on 25 March 2010 the offender is sentenced to imprisonment, I set a fixed term of imprisonment to date from 6 October 2011. For the offence committed on 27 March 2010 the offender is sentenced to imprisonment, I set a non-parole period of two years to date from 6 April 2012 and a head sentence on that matter of three years. For the offence committed on 2 April 2010, taking into account the matters on the Form 1, the offender is sentenced to imprisonment, I set a non-parole period of two years to date from 6 October 2012 and a head sentence on that matter of four years.

1. The result is that the overall term of the sentences I impose is a non-parole period effectively of three and a half years with a head sentence of five and a half years. The offender is thus eligible to be released to parole on 5 October 2014.

1. I refer the offender back to the Drug Court as he is currently the subject of a compulsory drug treatment order and it is my very firm recommendation that he be assessed as eligible to continue receiving treatment under the compulsory drug treatment order, given the great difference between the offender's criminal history to date and the measures of rehabilitation he appears to have achieved since first being treated under compulsory drug treatment order.

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Decision last updated: 30 June 2011