R v Sangster

[2022] NSWDC 694

District Court

New South Wales

Medium Neutral Citation:

R v Sangster [2022] NSWDC 694

Hearing dates:

5 October 2022

Date of orders:

5 October 2022

Decision date:

05 October 2022

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Aggregate sentence of 3 years 1 month with a non-parole period of 1 year 6 months.

Catchwords:

CRIME – Aggravated Break and enter & commit serious indictable offence - people present

SENTENCING - Relevant factors on sentence – early guilty pela- impact of offending on victims and community- need for punishment- background of trauma and deprivation- long history of offending as a juvenile- first adult gaol sentence- committed on Children’s Court parole - substantial finding of special circumstances- release subject to SPA determination

Legislation Cited:

Crimes Act 1900

Crimes (Administration of Sentences) Act 1999

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Bugmy v The Queen (2013) 249 CLR 571;[2013] HCA 37

Clarke-Jeffries v R [2019] NSWCCA 56

Henry v R [1999] NSWCCA 111; (1999) 46 NSWLR 346

KT v R [2008] NSWCCA 51

Nasrallah v R [2021] NSWCCA 207

Ponfield v R [1999] NSWCCA 435; (1999) 48 NSWLR 327

R v Fernando (1992) 76 A Crim R 58

Category:

Sentence

Parties:

Alex Sangster (the offender)
Director of Public Prosecutions

Representation:

Solicitors:
Ms I Attwooll, Solicitor, Aboriginal Legal Service (NSW/ACT) Limited (for the offender)Ms J Azad (for Director of Public Prosecutions)

File Number(s):

2021/00269438

SENTENCE – EX TEMPORE REVISED

Introduction

1. On the night of 6 and 7 September 2021 Alex Sangster, the offender, went to the Wollongong suburb of Balgownie. There he committed several serious offences. Two are for sentence today, and three others will be dealt with on a Crimes (Sentencing Procedure) Act 1999 Form 1 when I sentence for the second of the matters.

2. The two matters for sentence involved the aggravated breaking and entering and committing the offence of larceny in the garages attached to the homes of the residents. The offences were aggravated because Sangster, given the hour of the night, was aware people would be present in the homes. Those offences are charged pursuant to s 112(2) of the Crimes Act1900. They carry a maximum penalty of 20 years imprisonment and for an offence that taking into account only objective factors, falls in the middle of the range, there is a minimum standard non-parole period, that is minimum time in custody, of five years imprisonment.

3. If the minimum of five years was imposed it would, tragically, be a quarter of the life of this young man. The maximum penalty equates to the time Sangster has been on the planet. While those maximums and the standard are matters I have to take into account, there are many factors here that mean that I will not be imposing anything like the maximum or the standard non-parole period. But, content has to be given to that standard non-parole period.

4. A police investigation led to the arrest of the offender. He indicated he would plead guilty in the Local Court, and he is to have the full benefit that plea of guilty including a reduction of 25 % for its utilitarian value. There will be some accumulation of penalty, but I will take care that the process of accumulation does not undermine that reduction.

5. I have the benefit of comprehensive submissions by Ms Attwooll, solicitor for the Aboriginal Legal Service, who appears on his behalf and Ms Azad, solicitor for the Director of Public Prosecutions. They are not far apart in terms of assisting in my assessment of the seriousness of the offence, or in the relevant matters that must be considered. It is accepted that, given his criminal record and the seriousness of the offences, custodial penalties must be imposed on Mr Sangster.

Facts for sentence

6. Any sentencing exercise must start by a review of what occurred, and an assessment of the objective seriousness of the offences.

7. The residents of a house in Balgownie went to sleep on the night of the 6 September 2021. When they woke in the morning, their garage door and cupboards were open. They had been broken into. The door had been forced open. They were missing some tools. One of the tools was later recovered.

8. Another resident in an adjoining street locked their house before they went to bed that night. They heard a noise in the early hours but presumed it was the wind. Sometime later, they were told that their house had been entered, that the garage had been entered, and a motorbike and other items taken. The garage door had been opened. Some items were left in the street, but the motorcycle valued at $18,000 was missing, as was a children’s bicycle and a pair of sneakers.

9. Another property suffered damage that night, and shoes and portable speakers were taken and the offence of intentionally damaged property and larceny (Form 1 matter).

10. At another property that night, which was secured and locked, somehow, their garage was accessed and rummaged through, but no items were taken: (Form 1 matter).

11. There is a guideline judgement to assist judges in evaluating sentences for break and enter offences: Ponfield v The Queen 1999] NSWCCA 435; (1999) 48 NSWLR 327. Simpson J (as she then was) has said that since the introduction of s 21(A) of the Crimes (Sentencing Procedure) Act 1999 the guideline is of “limited utility”: Mapp v R [2010] NSWCCA 269 at [11]. But I must still take that guideline into account: s 42(A) Crimes (Sentencing Procedure) Act 1999. Such is the breadth of this type of offence that what I glean from Ponfield is - I must look closely at the particular facts of each offence.

12. Here, residential properties were entered. Some property of low value property was taken, but in the principal offence, sequence 5, a valuable motorcycle was taken. While monetary value of property taken is one measure of the seriousness of the offence, property often has other value.

13. The offences occurred in the early hours of the morning or late at night; people were at home, an element of the offence. When offences occur in a person’s home this cause them distress. Having your property entered, gone through and property taken can leave a victim with a sense of violation and unease Similarly, this type of offences cause grave disquiet in the community generally. Even if property is insured, householders face increased premiums and replacing the goods requires time and effort, but more importantly, matters such as this result in people not trusting other people in the community. The bottom line is if you cannot feel safe at home, where can you feel safe? And, if people do not feel safe, we do not become a community, we exclude people from our lives.

14. While, understandably a person’s home is most precious, the attached garage often has property of considerable value, as is clear from sequence 5. “Only” breaking into a garage is no less serious an offence at law.

15. Sangster given his youth and immaturity failed to really consider at night most people, that most nights and early mornings people will be home. And, if you enter someone’s garage, go into their property at night, there is a real risk of confrontation. And, if there is confrontation, someone can get hurt and if someone gets hurt, more serious offences can be committed.

16. The offender frankly admitted that he was drug affected at the time. This does mitigate. It does not take any imagination to realise what might have happened if someone had disturbed this drug affected young man going through their property. Again, a far more serious offence could have been committed.

17. So far as this offence is concerned, each of the victims here woke in the morning to learn that while they slept there were strangers in the dark in their property, matters I can and do take into account.

18. All these matters mean the offending is so serious a custodial sentenced are required.

Subjective features

19. The offender has a criminal record. Just because they were dealt in the Children’s Court does not mean that they are not a criminal record. Even if convictions were not recorded, they are matters I can consider. Since he was quite young Sangster has offended against others. He has benefited in some ways from the stability offered by juvenile detention but being locked away did not deter him. That is not his fault. It is well recognised that the principle of deterrence is a questionable theory. This particularly so for the young and immature and for people who, like Sangster, have never had an opportunity to lead a normal life in the community.

20. The material before me, supported by his criminal record indicates that he has never had a chance to settle. Since he was very young, he has associated with criminals and involved himself in criminal activity. That pattern has, sadly, been continued as an adult.

21. To be blunt, I will be taking care in these proceedings not to impose too harsh of sentence despite the objective severity of the offending. There are matters that require careful appreciation by any sentencing court. They are primarily set out in the report of Dr Dornan. His report matches in with what is said in the Sentence Assessment Report.

22. At the time of his offending Sangster was subject to parole, but he had not engaged and was not subject to compulsion. Breach of parole is an aggravating feature. There is some need for some short period of custody referable to that breach period of two months. I will take care again not to double count that potential aggravating feature by a significant increase in the sentence here.

23. At the time of offending Sangster was effectively homeless. He and his girlfriend had a temporary place in a local motel. He had exhausted his girlfriend’s patience. In fact, he was doubly homeless; in the sense that he was in the motel because he was homeless and then he was thrown out of that hotel where he should have been COVID quarantining because his girlfriend could not bear him in the room.

24. He committed the offences under the impact of drugs. Drug use does not and will not be considered as excusing a crime, but the matters which led to his drug use at a very young age before he could make rational choices will be considered. The fact of his addiction explains the impulsivity of his offences. It is relevant here for the matters I have already referred to regarding drug use and the commission of these offences by putting the victims at risk. But it also helps me understand what needs to be done for the future: Henry v R [1999] NSWCCA 111; (1999) 46 NSWLR 346 at [273]

25. The offender, an Aboriginal Australian. He had very little contact with his father, who from all reports did not treat his mother kindly. Sangster has witnessed domestic violence in the home, both at the hands of his father and stepfather. When he was very young, he witnessed a significant crime. His stepfather was stabbed. He still has trauma symptoms because of that incident. A sentencing court does not undervalue the impact of childhood trauma on an offender: Nasrallah v R [2021] NSWCCA 207.

26. The Sentence Assessment Report notes; Sangster’s history in juvenile detention, his superficial response to supervision and notes his considerable immaturity and incapacity to fully understand the seriousness of his offending.

27. On release, a supervision plan can be put in place for him. I would add to the matters that they consider necessary, the possibility of full-time drug rehabilitation rather than just counselling. If he is to turn his life around what he requires most is stability. Sadly, the court has no power to order services be provided to the offender, but he would certainly benefit from full-time drug rehabilitation and as completing many of the EQUIPS program as he is able to, during the balance of his non‑parole period.

28. This is Sangster’s first time in adult custody. Choices must be made. He needs to learn how think about his future - as if he continues committing criminal offences, he can look forward to spending a significant portion of his life in jail. If he takes up and applies himself to any help that is offered, he might avoid lengthy custodial sentences in the future. If he commits further offences, not only will he go to gaol, but he will have hurt someone else or their property. Ultimately, as my sentence is about community protection, I must do all I can to avoid that happening. But his temporary removal from the community will achieve little by way of long-term protection.

29. Dr Dornan’s report is comprehensive. A copy will be sent to Community Corrections. I will not set it out in detail, given the time constraints of this hearing. There are indications Sangster has some underlying mental health conditions. Dr Dornan indicates Sangster meets the criteria for; persistent depressive disorder, post traumatic disorder and the substance use disorder. These appear consistent with his history of trauma, exposure to violence, drug use, lack of schooling, and taking up and abuse of drugs at a very early age. He notes Sangster has limited insight into his mental health problems, but he has in the past engaged in therapeutic interventions, and he must do so in the future.

30. Sangster’s background, set out in the reports and criminal record, reflects many of the matters referred to by the courts in R v Fernando (1992) 76 A Crim R 58 and Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37. There is no contest that those authorities apply here.

31. Sangster, does not and should not, be treated as an offender who had an otherwise normal upbringing in the community would. To the contrary, his background must be taken into account and is one of the reasons why he could not be assessed as having the same moral culpability as a person whose background was not so marred. A person who has suffered such traumas, multiple traumas, in their early life is generally regarded as being less culpable than an offender whose formative years were not so marred. Those matters should be given full weight in every case.

32. Sangster’s background has clearly left a mark on him and compromised his capacity to mature and learn from experience. He is also sadly, therefore, still immature, although he is now because of his age, being dealt with as an adult for the first time. His immaturity was a significant contributing factor to his offending and the seriousness of it. I can, despite his chronological age, apply principles that recognise in practical way the immaturity of youth: KT v R [2008] NSWCCA 51; Clarke-Jeffries v R [2019] NSWCCA 56.

33. It is well recognised that the young and immature have less ability to make good decisions, particularly if they grow up in or are living in stressful, unstructured settings subject to the anti-social influence of others.

Synthesis

34. Sentences must attempt to balance several important considerations. Here there must be punishment, but it is also clear that the sooner Sangster can, as a sentenced prisoner, access programs, the better. It is also clear he has to have some motivation to engage in treatment in custody and to obey directions of prison officers and the NSW State Parole Authority. He will not be released to parole automatically. He will have to earn his release to parole. Before he is released, he will have to satisfy the State Parole Authority he is not a risk to the safety of members of the community: s135(1)(a) Crimes (Administration of Sentences Act 1999.

35. I will, however, structure the sentence so that only 50 % of his time in custody must be spent in custody. The balance will be available to him if he qualifies for parole. Up to you, Mr Sangster. That determination reflects a substantial finding of special circumstances for the reasons I have outlined, which I hope are obvious, including some accumulation of the two sentences.

36. The sentence must be proportionate to the totality of the offending but I have so structured the sentence because there is still hope that motivation offered by early release will encourage Sangster to engage in rehabilitation programs such as the EQUIPS programs; which I trust will be offered to him. He will need as much assistance as can be given so far as drug rehabilitation is concerned. It is up to the NSW State Parole Authority, but it may be a condition of his release that he go into a residential program. I would certainly encourage it.

37. It is also clear, from what Dr Dornan has said, that on release Sangster will need to engage with a service such as the Aboriginal Medical Service and accept referral to and take treatment from a psychiatrist and a psychologist. There are a number of matters set out in the report which require urgent intervention. I am not pretending that this will be easy for him or the authorities. I am not pretending that his chances of rehabilitation are good. I have had too much experience to do that; but I will give him the opportunity. He may fail, the system may fail him. His prognosis based upon past behaviour is not good, but the effort must be made both for his benefit and for the communities.

38. There will be convictions in both matters. In fixing the indicted and aggregate sentences I take into account Sangster’s; early guilty pleas, the Form 1, the need for some partial accumulation and my finding of special circumstances.

Orders

39. Indicated sentences:

1. Sequence 5, Agg B&E & commit serious indictable offence-people there, the taking of the motorcycle which has the matters on the Form 1, as it carries a standard non parole period, I indicate a sentence of two years and seven months. There will be a non-parole period of one year and four months.

2. In relation to the other matter, sequence 1, I indicate a sentence of one year and ten months with a non-parole period of 11 months.

40. The aggregate sentence will be one of three years and one month. It will date from 21 November 2021, aggregated to two months from when Sangster went into custody. The non-parole period will be one year and six months. It will date from 21 November 2021, making him eligible for consideration for release to parole on 20 May 2023. There will be a parole period of one year and seven months. The total sentence will expire on 20 December 2024.

41. I direct the Registrar to forward a copy of the psychologist report of Dr T Dornan (exhibit 1) to Corrective Services with the warrant.

42. The effect of my sentence, Mr Sangster, is that you will be released to parole on 20 May 2023, next year, if the NSW Parole Authority think it appropriate to do so. This requires you to behave and do what programs are available to you in custody. You will then have one year seven months hanging over your head, where you could be returned to jail if there’s any breach. That’s a lengthy period of time. If any breach involves further crime, you may as well keep your little photograph on the door of your cell because you will get another custodial sentence. Once you start a series of adult custodial sentences as you have done, it is very easy for judges and magistrates to simply lock you away because the community has to be protected from you.

43. Given your background, a lot of work needs to be done and hopefully your time in custody will enable you to mature and learn from experience. I am guarded in my findings because, as Dr Doran’s report explains, to date you have not yet demonstrated much capacity to learn from experience.

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Decision last updated: 22 February 2023