R v Shailer

[2013] NSWDC 338

District Court

New South Wales

Medium Neutral Citation:	R v Shailer [2013] NSWDC 338
Hearing dates:	6 June 2013
Date of orders:	06 June 2013
Decision date:	06 June 2013
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	Sentenced to an aggregate sentence consisting of a non-parole period of 2½ years and a head sentence of 5 years. Recommend that the offender be referred to the Compulsory Drug Treatment Correctional Centre program
Catchwords:	CRIMINAL LAW – Sentence – Form 1 -Break enter and steal - Drug addiction as a motivating factor - E-classification as a hinderance to rehabilitation
Category:	Sentence
Parties:	The Crown Mark Edward Shailer
Representation:	Solicitors: Director of Public Prosecutions Legal Aid Commission - Offender
File Number(s):	2012/255786; 2012/267191; 2012/278750

SENTENCE

1. HIS HONOUR: It is rare to find an offence of break enter and steal being dealt with in this Court where the offender is not motivated by a desire to obtain money for drugs. This case is no exception. Mark Shailer is now to be sentenced for three offences of break enter and steal committed on 18 May, 30 June and 29 June 2012. When I sentence him for the first of those matters he asks that I take into account a further offence of break enter and steal also committed on 18 May 2012. The two offences on 18 May were committed while Mr Shailer was on parole, he having been released a relative short time earlier.

2. Mr Shailer accurately says that at the age of 36 he has done nothing with his life to date. He has never worked, he has barely studied and drug abuse has been a significant feature of his life. It is a terribly sad state of affairs to see someone wasting the only life he has as Mr Shailer has been up till now.

3. In each case the offender broke into business premises where he stole in, some cases, significant items, whilst in other cases all he got was a few coins. In all cases he caused damage to the property as he broke in so the overall loss that Mr Shailer has been responsible for is significant, but it must be recognised that these offences are less serious than those where offenders break into residential premises and steal items, often of little monetary value but of great sentimental value. I am not attempting at all to minimise the seriousness of Mr Shailer’s wrongdoing but it is to be recognised that most offences of break enter and steal do involve residential premises where, in the ordinary course of events, householders suffer greatly not only through financial loss but also through loss of sentimental items and through very real feelings of apprehension at having their homes broken into and their security invaded. No doubt the owners of these business premises also feel similar things but that would be to a much lesser extent. Mr Shailer himself appreciates something along the lines of what I have just been saying, he does not want to commit an offence where he is likely to come face to face with a person against whom he is committing that offence.

4. It is not necessary to go through the facts of these offences in any detail at all. In each case physical force was used to break into premises causing damage on the way and Mr Shailer took whatever he could. With one possible exception he did not, as is unfortunately common, take the opportunity of gratuitously vandalising any property whilst inside, the one possible exception is that on one occasion the owner of the premises discovered that a cash box which had held money was now filled with liquid soap.

5. Mr Shailer was arrested having helpfully assisted the police by leaving behind on two occasions blood containing his DNA and on the other two occasions his fingerprints. It was not a terribly difficult job to work out who was responsible for these offences and when confronted by police Mr Shailer accurately described things as an open and shut case. He committed these offences to get money for drugs having had problems with drug addiction for a very long time indeed.

6. Mr Shailer’s upbringing was unstable, his parents separated before he was born and he was brought up by his mother. She was described by Mr Shailer as a workaholic who worked in pubs and nightclubs and who moved around fairly regularly. He was brought up by his grandmother for a little while but she died when Mr Shailer was 12 or 13. A rather obvious feature of Mr Shailer’s upbringing was the lack of any parental guidance as regards proper behaviour. There appears to have been little rule setting by his mother and after Mr Shailer’s grandmother died he lost all pro-social supports. He left school at around this time, not because he was incapable of learning, indeed the evidence would suggest to the contrary, but because of his poor behaviour.

7. He is described in a psychological report tendered on his behalf as something of a risk taker. The comment is made in the report about the number of broken bones for example. Mr Shailer has described himself as something of an Evel Knievel as a child, seemingly having little concern for his own safety.

8. Mr Shailer recognises more than anybody else probably the difficulties that he now faces in rehabilitating himself. He said to me in evidence that he was afraid of getting out of gaol and would not have a clue on how to live a normal life. Those things are probably fairly accurate. Mr Shailer appears to have spent almost half his life, not half his adult life, but half his life in gaol and since his first custodial sentence the longest that he has ever been out of gaol appears to have been just over a year. There is a depressing history of release from custody and then in only a matter of months going back inside after new offences were committed. At 36 nothing appears to be changing. As I mentioned very early in these remarks on sentence Mr Shailer’s first offence, for which he must be sentenced today, came about when he was on parole.

9. But what do we do with Mr Shailer and more importantly what do we do to protect the community, because every time Mr Shailer commits an offence someone is harmed? The answer is simply not to put Mr Shailer inside for longer and longer periods of time, the answer must be that efforts must be made to break the cycle that Mr Shailer is currently in. The psychological report concludes by referring to programs that Mr Shailer can undertake in order to promote his rehabilitation. One of those is the compulsory drug treatment correctional centre program. As it turns out the sentence that I have decided to impose upon Mr Shailer will make him eligible for that program.

10. I should mention one matter concerning Mr Shailer’s rehabilitation. He is currently an E-classification prisoner, having an offence of escape on his criminal history. It is not for me to question the wisdom of that classification remaining for a short period of time after an offence of escape, but it must be recognised that prisoners with that classification receive much fewer opportunities for rehabilitation. Things such as work release are often denied prisoners with E classification and yet sometimes that is exactly what is required for a prisoner to be able to learn how to live outside gaol. It is my firm recommendation that early attention is given to Mr Shailer’s classification and that unless there are clear and demonstrable reasons for the classification remaining it should be removed.

11. Mr Shailer has been serving unrelated sentences from when he first went into custody on 6 August last year until 5 January 2013. Since that date his custody is solely referrable to these offences. I will commence the sentences I will shortly announce from 5 January 2013 but of course in selecting the sentences that I will impose I have taken account of the principle of totality. The fact that my sentences will be accumulative on other sentences is also a matter relevant to the finding of special circumstances that I will make, but that is not the only reason I will find special circumstances at all. If Mr Shailer is to be rehabilitated so that future members of the community are not harmed, as Mr Shailer has harmed people in the past, then a great of attention is going to have to be paid to Mr Shailer after his release from custody. It may be, for example, that it will be a condition of his parole that he enter a residential rehabilitation program. It will not be for me to decide what is going to happen to Mr Shailer but I can say that he is one prisoner who, unless serious efforts are made to rehabilitate him whilst he is on parole, will commit further offences which will see him not only back in gaol but other members of the community suffering as a result.

12. Mr Shailer, consistent with his acknowledgement of his guilt when he was first spoken to by police, pleaded guilty at the earliest opportunity and so the sentences I have decided to set are 25% less than they otherwise would have been.

13. I have decided to impose an aggregate sentence. Where if I were to have imposed individual sentences I would have sentenced Mr Shailer to imprisonment for two and a half years for the first offence, taking into account the Form 1 and the fact that he was on parole and that there was a more significant loss in that matter than other offences, and for the second and third offences I would have sentenced him to imprisonment for two years.

14. Instead I impose an aggregate sentence, consisting of a non-parole of two and a half years and a head sentence of five years to commence from 5 January 2013. That means that Mr Shailer will be eligible to be released to parole on 4 July 2015. I recommend that he be referred to the Compulsory Drug Treatment Correctional Centre program for assessment whether he is suitable for the program.

15. I will note that it appears that Mr Shailer’s usual place of residence is within the locations covered by the compulsory Drug Treatment Correctional Centre order.

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Decision last updated: 16 September 2015