R v Spice, Richardson, Thompson & McGregor

[2008] NSWDC 250

CITATION:	R v Spice, Richardson, Thompson & McGregor [2008] NSWDC 250
JUDGMENT DATE:	7 November 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Hulme SC DCJ
DECISION:	Spice - Total sentence of 3 years with a non-parole component of 1 year 9 months Richardson - Total sentence of 1 years 10 months with a non-parole component of 1 year to be served by way of periodic detention Thompson - Total sentence of 3 years with a non-parole component of 1 year 9 months McGregor - Total sentence of 1 year 9 months with a non-parole component of 1 year to be served by way of periodic detention
CATCHWORDS:	CRIMINAL LAW - Sentence - Break and enter with intent - Break, enter and steal - Accessory after break and enter with intent - Primacy of consideration of objective seriousness of offences - Commercial Premises - Planning - Significant loss and damage - Rehabilitation - Quasi custody - Special circumstances
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Eastway (unrep, 19/5/92, NSWCCA) R v Everingham (unrep, 4/7/94, NSWCCA) R v Psaroudis (unrep, 1/4/96, NSWCCA) R v Campbell [1999] NSWCCA 76 R v Thompson [2000] NSWCCA 362 R v Perry [2000] NSWCCA 375 R v Fowler (2003) 151 A Crim R 166 R v Delaney (2003) 59 NSWLR 1 R v Sullivan (2004) 41 MVR 250 R v Cartwright (1989) 17 NSWLR 243 R v Kivits (unrep, 4/11/93, NSWCCA) R v Dennis (unrep, 14/12/92, NSWCCA) R v Williams (unrep, 5/8/93, NSWCCA) R v Kennedy (unrep, 31/8/93, NSWCCA) R v Sayak (unrep, 16/9/93, NSWCCA) R v Herbert (unrep, 4/11/93, NSWCCA) R v Kirwin (unrep, 30/10/97, NSWCCA) R v Hanley (unrep, 9/10/98, NSWCCA) R v Khamas (1999) 108 A Crim R 499 R v Fowler (2003) 151 A Crim R 166 R v Webb (2004) 149 A Crim R 167 R v Henry (1999) 46 NSWLR 346 R v Dodd (1991) 57 A Crim R 349 R v McNaughton (2006) 66 NSWLR 566 R v Youkhana [2004] NSWCCA 412 R v Ponfield (1999) 48 NSWLR 327 R v Gordon (1994) 71 A Crim R 459 Veen v The Queen (No 2) (1988) 164 CLR 465 Pearce v The Queen (1998) 194 CLR 610
PARTIES:	R v Graham Thomas Spice R v Kylie Louise Richardson R v David John Thompson R v Julie Maree McGregor
FILE NUMBER(S):	08/11/0908; 08/11/0907; 08/11/0909; 08/11/0906
COUNSEL:	Mr Allen (Spice) Ms Hall (Richardson) Ms Robinson (McGregor)
SOLICITORS:	Ms Lalic (Crown) Mr Rolfe (Thompson)

JUDGMENT

1 HIS HONOUR: Each of the offenders, Graham Thomas SPICE, Kylie Louise RICHARDSON, David John THOMPSON and Julie Maree McGREGOR, pleaded guilty in the Local Court in respect of offences relating to the theft of money from the Wentworth Golf Club in Orange. They all pleaded guilty to an offence of Break, enter and steal committed on 12 August 2007. Spice, Thompson and McGregor pleaded guilty to the offence of Break and enter with intent to steal on 30 July 2007. Richardson pleaded guilty to accessory after the fact to break and enter with intent to steal on 30 July 2007. They were committed to stand for sentence in this Court.

2 The offence of break, enter and steal is against s.112(1) Crimes Act 1900 and carries a maximum penalty of imprisonment for 14 years. An offence of break and enter with intent to steal is against s.113(1) and has a maximum penalty of imprisonment for 10 years. Pursuant to s.350, an accessory after the fact to such an offence is liable to a penalty of imprisonment for 5 years.

FACTS

3 There is an agreed statement of facts before me from which I derive the following.

4 Spice and Richardson lived in a defacto relationship at 251 Lone Pine Avenue, Orange. Richardson was employed as a bar attendant at the Wentworth Golf Club. McGregor and Thompson lived at Penrith.

5 Spice and Thompson arranged to break and enter the golf club in order to steal money. An agreement was reached that they would do this on 30 July 2007. On that day Thompson and McGregor drove from Penrith to the home of Spice and Richardson. At about 5.30am, McGregor drove the two men to the golf club with the knowledge that they intended to break into it and steal money. She then drove away and waited for a phone call to pick them up.

6 The golf club was broken into by making a hole through the cool room roof which led into the club but this caused the alarm to be activated. Spice and Thompson ran off and were separated. Spice contacted Richardson who came and picked him up and took him back to Lone Pine Avenue. On the journey home he disclosed to her what had happened. Thompson contacted McGregor and she picked him up and they also returned to Lone Pine Avenue.

7 There was a subsequent agreement reached between the 4 offenders that Spice and Thompson would again break into the golf club on 11 August 2007. A series of SMS messages were sent between Spice and Thompson prior to that date.

8 Richardson was on duty at the golf club that evening and after completing her shift the offenders met at her Lone Pine Avenue home. Spice and Thompson were driven to the club by McGregor. She knew what they were intending to do. After dropping them off she waited for a call from Thompson.

9 The golf club was again entered through the roof. Access was gained to the safe via the cool room and kitchen through a door which had been left unlocked. SMS messages were exchanged between Spice and Thompson while this was happening. An amount of $25,266.78 was stolen from the safe. McGregor, Spice and Thompson returned to the Lone Pine residence where the proceeds of the theft were counted by the offenders. Thompson gave Richardson and Spice a portion of the proceeds for their involvement. Thompson and McGregor then returned to Sydney. Richardson and Spice drove to Forbes where they spent a part of the proceeds.

10 When subsequently interviewed by police Richardson denied any knowledge of either offence. Spice initially denied involvement but later made admissions that on each occasion he played the role of lookout outside the club. McGregor is said to have made full and frank admissions about her involvement. Thompson denied involvement in either offence.

11 The offenders Spice and Richardson were arrested on 25 September 2007. The offenders McGregor and Thompson were arrested on 17 and 18 October 2007 respectively.

EVIDENCE OF OFFENDERS AT SENTENCE HEARING

12 The hearing of this matter commenced before me at the Orange sittings on 29 August 2008 and continued in Sydney on 24 October. It became apparent that there are a considerable number of relevant matters not addressed in the Agreed Facts document. To cite just one example, there is reference to Ms Richardson being on duty at the golf club on 11 August 2007 and to the four offenders meeting shortly after she finished her shift. I thought it was a relevant matter to inquire whether her employment at the club was used in any way by the offenders to plan the break- in or to assist in the execution of the plan. It seems rather unlikely that one of the offenders was in possession of the key and combination to the safe and yet the offenders did not make any use of this potential inside assistance. Another example is that the offender Spice claimed that on both occasions he simply waited outside. His evidence was to the effect that the plan to rob the club originated with Thompson. Thompson, however, said in his evidence that Spice had approached him about it. He also said that Spice entered the premises with him on both occasions. There was some discussion at the hearing on 24 October as to whether I could find facts beyond those set out in the Agreed Facts. It was agreed by the Crown and the representatives of each of the offenders that I should confine myself to that document. The agreement included that I should disregard the evidence given by the offenders that touched upon the offence itself, including that which tended to suggest a minimisation of an offender’s role.

13 Given this was a position taken by all parties I propose to confine myself in the manner suggested. I must say, however, that I am uncomfortable about this because it is obvious that I have not been told the complete truth in the evidence I have heard from the offenders. The conflict between the evidence of Spice and Thompson that I have just referred to is one example. Nevertheless, I will put that to one side and proceed in the way the parties wish. Given that I cannot determine whether an individual offender was being truthful in the account he or she gave about the offences, it would be inappropriate for me to take into account any of the explanations they gave for their involvement in the offences, and what they did afterwards with the proceeds of the theft. I will only act upon evidence they gave concerning their respective personal circumstances.

SUBJECTIVE FEATURES – SPICE

14 The offender Spice was born on 30 August 1979 and so he was 27 at the time of the offences.

15 He has a criminal history comprising four matters of stealing, one of break, enter and steal, and five of malicious damage in the Children’s Court. As an adult there are matters of assault, property damage, offensive behaviour and traffic offences. All matters were dealt with by way of fines and bonds. It is a record that denies to him the leniency that could be extended to a person without such a record.

16 He has been on bail in respect of this matter since arrest but was in custody on remand for unrelated matters from 19 April to 27 May 2008.

17 He was born and raised in the Forbes area where he presently lives with his mother and step-father. He has no knowledge of his biological father. He was diagnosed with ADHD when at primary school and was prescribed medication for it until he was in Year 8. He has a number of half siblings and he is closest to Robert who is about a year younger than him. Robert has experienced a difficulty with a drug addiction. The offender is said to have feelings of attachment, concern and responsibility for him. His step-father came into the family when the offender was 10. He did not get on well with him and left home in his mid-teens to live with his step-father’s brother who, apparently, subjected him to sexual abuse over a period of about a year. He did not complain about it at the time but told others about it some 4 years later.

18 He completed an apprenticeship as a boilermaker on leaving school after the School Certificate and he has been in continuous employment in his trade since then. He presently has a job in Bathurst and he commutes daily from Forbes. Inquiries by the Probation and Parole Service indicate that the offender is a valued and skilled tradesman. The fact that he is travelling some 350 km per day from Forbes to Bathurst and return shows a rather extraordinary commitment to his employment.

19 He was married at the age of 21 and has two children from that relationship who are aged 6 and 4. That relationship ended in 2004. He has another 4 year old child from another contemporaneous relationship. He met the offender Richardson when he moved to Orange and they were in a relationship for some 2 years but that has ended. Ms Robilliard, psychologist, suggests that the offender should commit to psychotherapy in order to deal with problems of commitment and attachment which have caused dysfunctional behaviour in relationships which he needs to address. She said he gave no history of treatment for mental illness or depression but did report three past attempted suicide events. No ongoing mental health management was arranged in relation to any of these episodes.

20 Alcohol has been an enduring problem in his life. He commenced drinking at the age of 11 or 12. It was freely available to him when he was living with his step-father’s brother and his consumption increased when he moved out to live independently. His steady and consistent employment history indicates that he did not allow alcohol consumption to become totally destructive. He said in his evidence that he had been abstinent since early June this year and has found he is now thinking more clearly. He is attending AA meetings and intends to remain abstinent. Testing by Ms Robilliard revealed what she says is a highly significant score on the Substance Abuse Inventory which demonstrated a significant level of psychological and emotional distress. She refers to his past suicidal gestures as emphasising the need for his mental health to be managed and monitored.

21 On a positive note Ms Robilliard reports that the offender’s commitment to employment is a “major protective factor which could be utilised in his ongoing supervision and management by allowing him to remain employed”. She says, “it would provide a central structure around which other interventions in the areas of drug and alcohol education, mental health care management and monitoring including psychotherapy could assist and support”. She recommends a period of supervision by the Probation and Parole Service.

22 The first Pre Sentence Report that was prepared in relation to Spice includes that he was assessed as suitable for a “medium level of intervention” by the Service. He was assessed as unsuitable for community service or periodic detention because of unresolved alcohol dependency. I note that this assessment was conducted when the offender was in custody in May and before his present period of abstinence commenced. A second Pre Sentence Report dated 28 August 2008 is in more positive terms. He is now assessed as suitable for community service and periodic detention on the basis of his new found sobriety.

23 When the offender Spice was asked in his evidence how he felt about the offences he said that he wished he could go back to that night. When asked why he said, “because that’s not me”. He was asked how he felt about the victim club and its members and he said that he was sorry for it and them. Later, he said that he accepted responsibility.

24 Section 21A(3) Crimes (Sentencing Procedure) Act 1999 (“Sentencing Procedure Act”) provides that the mitigating factors to be taken into account in determining the appropriate sentence for an offence include:

(i) the remorse shown by the offender for the offence, but only if:

(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),

25 Mr Spice has been in employment but there is no suggestion of him even offering to make any contribution to compensating the victim golf club, or its insurers, for the loss and damage. Whilst I am satisfied that he has accepted responsibility, he has not acknowledged the loss and damage that was caused by his actions nor made reparation. As a consequence I am not satisfied that he is remorseful.

26 I accept that he has good prospects of rehabilitation and is unlikely to re-offend. His strong work ethic and the positive steps he has taken to overcome his long standing problem with alcohol abuse strongly support such findings.

27 The offender entered pleas of guilty in the Local Court on 15 April 2008, a little over 6 months after he was charged. It cannot be said that they were pleas of guilty entered at the earliest opportunity. For the utilitarian benefit to the criminal justice system I propose to discount the sentences I would otherwise have imposed upon him by 20%.

28 The offender was in custody from 19 April to 27 May 2007 but that was because he was charged with unrelated matters arising from some domestic incident. When he was charged with those matters his bail for the present matters was also revoked. Those other proceedings were subsequently dismissed. In these circumstances it seems appropriate to allow credit for that period of 39 days of pre sentence custody.

29 Mr Allen, counsel for the offender Spice, submitted that imprisonment was an appropriate starting point but that I should consider ordering that it be served by way of periodic detention, or that I should suspend execution of such sentence pursuant to s.12 Sentencing Procedure Act.

30 Mr Allen submitted that if I was to sentence his client to full-time imprisonment I should find special circumstances and reduce the non-parole period. The reasons he advanced for this were the offender’s need for psychotherapy and counselling, his good prospects of rehabilitation, his background, and this being his first sentence of imprisonment.

SUBJECTIVE FEATURES – RICHARDSON

31 The offender Richardson was born on 9 July 1970 and so she was 37 at the time of the offences.

32 She has no previous convictions. This, and the fact of her prior good character, are very much in her favour.

33 She was born in South Australia but brought up in the Orange area in a stable and supportive family environment. She told me in her evidence that she was married when she was 19 or 20 but that relationship ended some 3 years ago. She has 4 boys aged between 11 and 18. The 3 youngest live with her whilst the eldest alternates between living with her and his father. She commenced a relationship with the offender Spice after the marriage ended but that relationship came to an end following their arrest. She continues to reside in Orange with her children.

34 She was educated to Year 10 and has been in employment since with the exception of when her children were very young. She had been working at the Wentworth Golf Club for 3 months prior to the offences. At the time of giving evidence she had just started work as a housemaid.

35 She was asked how she felt about having committed the offences and she said she hated what had happened, felt awful and did not like thinking about it. She said she did not know how she got herself into this mess and that “it just happened”. She said she realised the seriousness of the offences and that she was facing full-time imprisonment. She said she would never become involved in criminal activity again. The author of the Pre Sentence Report states that she has shown remorse. I am prepared to find that she has accepted responsibility for her actions, although barely. I cannot be satisfied, however, that she has acknowledged the loss and damage caused, or that she has made, or even attempted to make, any reparation for such loss and damage. So, as with Mr Spice, I cannot be satisfied that she is remorseful.

36 Ms Tammy Lee Parrington was called to give evidence in the case for Richardson. She has been a friend of the offender for about 9 years and described her as “honest, great, good in every way”. She also said she was a “great mother” to her 4 sons. She considered that the offender’s involvement in the offences was out of character. Testimonials by Ms Parrington and 5 other people became Exhibit R1. They further confirm the positive opinion Ms Parrington has about the offender.

37 There is material in these testimonials and in the Pre Sentence Report that indicate that her relationship with the offender Spice was a negative one. Friends and family apparently became concerned about his influence upon her. She has no contact with him now and she is fortunate to have retained the support of those friends and her family.

38 Accepting that involvement in these offences was out of character, I am prepared to accept that she has good prospects of rehabilitation and is unlikely to re-offend. The Probation and Parole Officer was also of the view that the offender had a low risk of re-offending and indicated that she would not appear to benefit from supervision by her Service. She was assessed as suitable for community service and periodic detention.

39 Ms Richardson entered pleas of guilty in the Local Court on 15 April 2008, a little over 6 months after she was charged. If I was to impose a sentence of imprisonment I would discount it by 20% for the same reasons I indicated in relation to the offender Spice.

40 Ms Hall, counsel for Ms Richardson, submitted that I should impose upon her client some sentence other than full-time imprisonment. She suggested a community service order or a sentence to be served by way of periodic detention.

SUBJECTIVE FEATURES – THOMPSON

41 The offender Thompson was born on 6 February 1973 and so he was 34 at the time of the offences.

42 He has a criminal history comprising convictions for a number of driving offences. It is not a significant record in the context of the present case and that is something I am required to take into account in his favour.

43 He was born and raised in the western suburbs of Sydney. He has strong family ties and good support from his parents and two brothers. He left school in Year 9 to commence full time work. He did some labouring work and then completed an apprenticeship as a boilermaker. He has successfully remained in employment in a variety of positions since. His last job involved him being in charge of a team of men working on railway tracks throughout country New South Wales. He has specialist qualifications in types of welding that are quite rare. He was in that position for some 6 years and it is said he is able to return to it once this matter is behind him.

44 He was married in 2001 and has 2 sons. He was away from home a lot because of his work and this undoubtedly placed pressure on the marriage. Sometime in early 2007 they had a disagreement which resulted in their separation. He attempted to remain in contact with his children but has not seen them since being in custody.

45 Two weeks after moving out of the matrimonial home there was a motor vehicle accident in which one of his workers was killed and others seriously injured. As the offender had sent the workers on the trip he blamed himself for this.

46 He has used alcohol and cannabis in significant quantities since his teenage years. When he separated from his wife he commenced using amphetamine. He said that this helped him to not think about the death of his co-worker, his failed marriage, and the reduced contact with his sons. At its worst, he was spending about $1000 per day on drugs.

47 He became involved in a relationship with his co-offender McGregor in this post separation period. She was also an amphetamine user. He has described his life in the 3 months or so before the offences as “absolute chaos”. He attributes his involvement in the offences, and now being in gaol, to this, what he described as, “out of character behaviour”.

48 Mr Dennis Thompson, the offender’s father, gave evidence before me. He confirmed that the offender was significantly adversely affected by the breakdown of his marriage. Mr Thompson was not aware of the extent of his son’s substance abuse but from what his son has been saying to him in recent times he feels there are positive signs for his recovery.

49 The offender himself said in his evidence that he is motivated to pursue rehabilitation. He has been attending AA meetings in Bathurst Correctional Centre as often as they are available. In fact, he said there were no AA meetings when he was first there but he and some other inmates got together and started them up. He confirmed in his evidence the accuracy of what appears in the psychological report from which I have drawn the personal history I have just been referring to. He also confirmed his enthusiasm for work and the pride that he obviously has in his trade skills.

50 Personality testing was carried out by the psychologist, Ms Margaret Johnson. She indicates in her report that the results should be viewed with a degree of caution for reasons she sets out. The findings relate to the effects upon the offender’s life of alcohol and drug abuse. She suggests that he experienced more adverse effects than others with such problems. It is a matter of degree. I do not think there is anything significant in this beyond the acknowledgement that he was a person that had a problem with substance abuse. Other personality tests, according to Ms Johnson, indicate a number of possible negative characteristics but the equivocal way in which the findings are expressed lead me disregard them.

51 Ms Johnson recommends that Mr Thompson undergo a drug and alcohol rehabilitation program. She also recommends treatment to assist him in dealing with grief and loss arising from the breakdown of his marriage and the motor vehicle accident his work colleagues were involved in.

52 It is a positive indicator for his rehabilitation prospects that the offender of his own volition has sought out a suitable drug and alcohol rehabilitation program at The Glen. A letter is before me which indicates that he has been assessed as suitable for admission to that program.

53 The Pre Sentence Report for Mr Thompson recounts a history that is consistent with that in Ms Johnson’s report. The offender was assessed as suitable for a medium level of intervention by the Probation and Parole Service. The report states that strategies would include drug and alcohol assessment and counselling with a view toward entry into a residential rehabilitation centre if assessed as suitable. He is said to be unsuitable for community service and periodic detention because of unresolved drug and alcohol dependence.

54 Mr Thompson entered his pleas of guilty in the Local Court but not, in my view at what could be said to be the “earliest opportunity”. He knew he was guilty from the beginning. A submission was made that I should make some allowance for the fact, which the Crown concedes, that he did not have adequate legal representation for quite some months. That may well be the explanation but an assessment of the utilitarian benefit accruing to the criminal justice system from pleas of guilty must be made objectively. I will discount the sentences to be imposed by 20%.

55 I am satisfied that Mr Thompson has good prospects of rehabilitation and is unlikely to re-offend, provided that he pursues the course of rehabilitation that he has commenced and proposes to continue. His family support and strong work ethic are relevant matters to these findings.

56 There was no submission that I should find that Mr Thompson is remorseful. That is understandable because there is no evidence in terms of s.21A(3)(i) Sentencing Procedure Act that he is.

57 Mr Rolfe, who appeared for Mr Thompson, submitted that I should consider dealing with his matter under s.11 Sentencing Procedure Act. In view of the sentence that must inevitably be imposed I do not think that is a viable or appropriate option.

SUBJECTIVE FEATURES – McGREGOR

58 The offender McGregor was born on 18 December 1968 and so she was 38 at the time of the offences.

59 She has previous offences relating to drugs and weapons that were dealt with in a magistrate’s court in Queensland in January 2007. No convictions were recorded and she was fined so I accept that they were relatively minor matters. Aside from those matters I am prepared to accept that she has been of good character and will take this into account in her favour.

60 She had a rather dysfunctional upbringing. Her mother had some mental instability and did not offer affection. Her father was away a lot with his work but when home showed violence to her and her siblings. She claims to have been sexually abused by her older brother Nick from the age of 10 to 15. She says that he introduced her to drugs and that all her siblings were involved in drug use. In her adult years she has had varying, but mostly limited, contact with her siblings, occasional contact with her mother and some contact with her father.

61 She was educated to Year 9 when she was expelled for drug possession and shoplifting. She has had employment, mostly as a short-order cook, but has not been employed in the past couple of years.

62 When she was 18 and living away from home she fell pregnant. She rang her mother to tell her. She says her father then picked her up and took her to an abortion clinic, telling her to “sort it out”. At the age of 19 she met her now ex-husband and moved in with him. She had a son to him in 1992. The relationship was marred by domestic violence and mutual substance abuse and they separated following a violent assault upon her in 2006. She was hospitalised as a result of that assault and he spent some time in gaol. Her son now resides with his father on the north coast of NSW. The offender commenced a relationship with the offender Thompson in February 2007. She told Ms Wakely, psychologist, that she had no money or possessions and that Thompson offered to pay her if she would drive him around for work. She said she never saw any money but instead would be supplied with drugs. She said the relationship deteriorated because of his increasing drug use and that 10 days after the offence he left her for a younger woman.

63 Overall, Ms Wakely says that the offender has a “history of unhealthy dependency and instability in relationships and reacts strongly to threats of abandonment, regardless of how dysfunctional the relationship seems to have been at the time”.

64 The offender reported to Ms Wakely that she had attempted suicide on some 10 occasions in her life, the last in 2007. She has been diagnosed with depression and has been on Efexor and Zyprexa.

65 Her substance abuse started with cannabis at the age of 14 and continued on a daily basis until last year. She has used amphetamine off and on and described her use of this drug last year as most problematic. She has also used ecstasy and has abused prescription drugs. Ms Wakely offers the opinion that the offender has used substances as a coping mechanism to help block the negative experiences in her life. The offender said in her evidence that she used drugs as a means of coping with bouts of depression. She has not used any illegal drugs since December 2007. It was then that she commenced rehabilitation treatment through Jarrah House and after completion of that 3 month program she was accepted into Kamira Farm Women's Drug & Alcohol Rehabilitation Centre at Wyong. Ms Wakely saw the offender at Kamira Farm in June. She said that “at the time of interview her resolve to remain substance free and complete her treatment appeared to be fragile”. In the subsequently prepared Pre Sentence Report it is said that the offender had discharged herself from Kamira Farm after completing 4 months of the 6 – 12 month program. The offender claimed this was because she was not achieving the desired outcome but a report from Kamira stated that she chose to discharge herself after an incident with her counsellor.

66 The offender gave evidence about the rather strict conditions she encountered at both Jarrah House and Kamira Farm. This prompted her counsel to submit that I should take this into account as quasi custody. Although counsel indicated in written submissions that bail conditions required her client to remain in residential rehabilitation, in oral submissions it was conceded that this was not the case. It was submitted that compliance with strict conditions of a residential rehabilitation program can amount to quasi custody and should therefore be taken into account in mitigation whether or not the offender was compelled by court order to enter or remain in such a program. I can find no authority in support of that proposition and none was suggested.

67 The authorities I have looked at are: R v Eastway (unrep, 19/5/92, NSWCCA); R v Everingham (unrep, 4/7/94, NSWCCA); R v Psaroudis (unrep, 1/4/96, NSWCCA); R v Campbell [1999] NSWCCA 76; R v Thompson [2000] NSWCCA 362; R v Perry [2000] NSWCCA 375; R v Fowler (2003) 151 A Crim R 166; R v Delaney (2003) 59 NSWLR 1; R v Sullivan (2004) 41 MVR 250; R v Cartwright (1989) 17 NSWLR 243; R v Kivits (unrep, 4/11/93, NSWCCA); R v Dennis (unrep, 14/12/92, NSWCCA); R v Williams (unrep, 5/8/93, NSWCCA); R v Kennedy (unrep, 31/8/93, NSWCCA); R v Sayak (unrep, 16/9/93, NSWCCA); R v Herbert (unrep, 4/11/93, NSWCCA); R v Kirwin (unrep, 30/10/97, NSWCCA); R v Hanley (unrep, 9/10/98, NSWCCA); R v Khamas (1999) 108 A Crim R 499; R v Fowler (2003) 151 A Crim R 166; R v Webb (2004) 149 A Crim R 167. In each of them, except Psaroudis, the offender was compelled by a court order of some form to endure a period of quasi custody, or otherwise onerous bail conditions. In Psaroudis, the judgment is silent on the point. What I gather from the authorities is that where an offender is compelled by court order to endure some onerous requirement, then that is a matter that may be taken into account in the offender’s favour on sentence.

68 I have examined the court file. It seems that upon committal for sentence to this court the offender’s bail conditions were varied by changing a requirement that she reside at a nominated address to reflect the fact that she was then living at Karima Farm. Provision was made for her to report to police, and the like, if she left. It appears to me that there was no court compulsion as such for her to reside in a residential rehabilitation program. Rather, it was an exercise of bringing her bail conditions into line with her changed residential arrangements. It was her own choice to enter such a program and, if she wished, to leave. That is in fact what she did. I conclude that it would not be appropriate to make an allowance for “quasi custody”. The true relevance of the offender’s time spent in a residential program is in relation to her rehabilitation itself. The fact that she was prepared to undergo such programs, with the strict conditions that she spoke of in her evidence, says much about her motivation to pursue rehabilitation.

69 The offender said in her evidence that since commencing in rehabilitation she has not used drugs and this has been for the longest period in her adult life. Since leaving the program at Kamira Farm she has been living with her father and step-mother at Wilberforce and has been seeing a counsellor every week. She said she is also attending NA meetings each Thursday night. Another matter that bodes well for her remaining abstinent from drugs is that she has returned to taking prescribed medication for depression and she now realises the link between her taking illegal drugs and her not dealing with her depression by taking such medication. The stability of living with her father and having employment is also useful.

70 The offender has also had a problem with gambling and she told Ms Wakely that this was at its worst in 2007 when she was putting as much as she could through poker machines. In the Pre Sentence Report it is indicated that she would often gamble up to $500 per day.

71 She said that after the offender Thompson left her shortly after the offences she went on a binge of Zyprexa tablets which led to her admission to a psychiatric ward. Upon release she became increasingly angry with Thompson and called the police to report what they had done. Ms Wakely reports the offender as having said she was, “sick of using drugs and upset about the situation and her involvement”. She told Ms Wakely, “I regret it big time, that’s why I dobbed us in. It was only because I trusted him and I wanted my life sorted ... he said he’d help me”.

72 Testing by Ms Wakely revealed that the offender had a high probability of substance dependence disorder but some of the scores indicate that she has begun to develop insight into her substance abuse problems and the underlying causes.

73 Ms Wakely concludes her report as follows: “Julie has taken appropriate measures to rectify some of the problems in her life. Her lack of stability and appropriate supports in the community are cause for concern and she will need professional assistance and resources. Julie will require close monitoring and ongoing treatments to provide her with the best chance possible of remaining substance free and achieving a reasonably stable level of mental health”. Ms Wakely, of course, was writing before the offender achieved the relative stability in the community that she now has.

74 Despite discharging herself from the program at Kamira Farm, the Probation and Parole Officer feels that the offender “may benefit from further community based alcohol and other drugs treatment and psychological intervention”.

75 Statements by the offender’s father and step-mother are before me. They indicate that she has been living with them since leaving Kamira and has commenced a more stable and functional lifestyle and, as far as they are aware, has remained abstinent from drugs. They describe her as having “turned the corner” and have confidence in her resolve to remain drug free, although acknowledging that there is a need for her to pursue counselling in relation to her underlying psychological issues.

76 There is some indication that the offender is remorseful in that she initiated contact with the police and admitted her involvement. The Probation and Parole Officer reports that she, “Appears to accept responsibility for the offence and displayed insight into her offending behaviour”. In her evidence before me she was asked about the impact of the offences upon the golf club and she said, “I’m really sorry for my part in it”. None of this involves an acknowledgement of the loss and damage caused by her actions and she has not made, or offered to make, reparation for such loss and damage. Given the terms of s.21A(3)(i), I cannot therefore find that she is remorseful.

77 Having said that, however, I am satisfied that she has good prospects of rehabilitation and is unlikely to re-offend. Her rehabilitation to date and her motivation to continue in this strongly supports such findings. The reports indicate that she will need further treatment and monitoring but I am satisfied that she is amenable to this.

78 I am satisfied that there is a link between the offender’s involvement in the offences and her drug use and that her drug use had its origins in events in her teenage years over which she had little or no control. Accordingly, I am satisfied that the link between drug abuse and the offences is something I should take into account as a relevant subjective circumstance as indicated by Wood CJ at CL in R v Henry (1999) 46 NSWLR 346 at [273](c)(ii) and (iii).

79 Ms Robinson submitted that her client was not an appropriate vehicle for general deterrence because of her diagnosis of depression and her long standing mental health instability. I do not accept that submission because I am not satisfied that an appropriate link has between established between those issues and her commission of the offences. In short, I am satisfied of the drug link but not the mental health link.

80 The offender McGregor has been assessed as unsuitable for community service or periodic detention because of an inability to demonstrate her stability in the community. However, it is a matter for me to determine whether such sentencing options are appropriate, whilst having regard to the assessment made by the Probation and Parole Officer.

81 The offender entered her pleas of guilty in the Local Court on 4 March 2008. If I was to sentence her to imprisonment I would discount the sentences I would otherwise have imposed upon her by 25%. The offender’s co-operation with authorities in providing a voluntary disclosure of guilt is a relevant matter in this context.

82 The offender McGregor was in custody for 1 day, having been arrested on 17 October and released on bail on 18 October 2007. I will take this into account.

83 Ms Robinson submitted that it was appropriate that her client be sentenced to imprisonment but she also submitted that it would be appropriate to suspend the sentence pursuant to s.12 Sentencing Procedure Act.

Objective seriousness of the offences and roles played by each offender

84 Having just dealt with the subjective features of each of the offenders, there is a useful reminder in the written submissions on behalf of the offender McGregor of the often quoted passage in the judgment of Gleeson CJ, Lee CJ at CL and Hunt J in Dodd (1991) 57 A Crim R 349 at 354:

“… it is always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence viewed objectively, for without this assessment the other factors requiring consideration in order to arrive at the proper sentence to be imposed cannot properly be given their place”.

85 The judgment goes on to state that the relative importance of the objective facts and the subjective features of a case will vary but even so, there is sometimes a risk that attention to persuasive subjective considerations may cause inadequate weight to be given to the objective circumstances of the case.

86 In R v McNaughton (2006) 66 NSWLR 566, Spigelman CJ said:

[15] It is authoritatively established that the common law principle of proportionality requires that a sentence should not exceed what is proportionate to the gravity of the crime, having regard to the objective circumstances. (T)he proportionality principle is also held to apply so that a sentence should not be less than the objective gravity of the offence requires. (Reference to authorities omitted).

87 As far as an offence of breaking, entering and committing a serious indictable offence is concerned, this matter is one of considerable seriousness. It involved two offenders actually involved with the physical execution of the crime, supported by another two offenders. I hasten to add, however, that I must ignore the fact that it was committed “in company” because that is a circumstance of aggravation that for some unknown reason the Crown has not charged. There is a degree of artificiality in that.

88 There was obviously more than passing thought given to the manner in which the offence would be committed. There must have been a plan as to how to gain entry to the club, when to do so, and then how to gain entry to the safe. It involved Ms Richardson contributing to the plan by advising her co-offenders that the hole in the roof of the club created when the first offence was committed had remained unrepaired. As to safe, the Agreed Facts are curiously silent as to how the money was taken from it. The document merely says that the safe was “accessed”. There are three possibilities – one that it was broken into using some type of equipment that was taken for the purpose; another that it was left open; and yet another, that it was opened with the use of the key and the combination. If it was either of the latter two possibilities, then the involvement of Ms Richardson is indicated. However, as I said earlier, I am dealing with this matter on the basis of the Agreed Facts and nothing else. I have been asked not to concern myself with the truth of the matter. Consequently I must put aside any consideration of how the money was taken from the safe, except that by whatever means it was taken, it must have been the subject of planning. Despite submissions to the contrary, I am satisfied beyond reasonable doubt that this was planned and organised criminal activity that went beyond the minimum that is inherent in an offence against s.112(1).

89 I am similarly satisfied that the loss occasioned by the offence was substantial. In excess of $25,000 in cash was taken. It was submitted by Mr Allen on behalf of the offender Spice that the financial loss, whilst significant, was not greater or more serious than normally contemplated. He referred me to R v Youkhana [2004] NSWCCA 412. I do not accept that submission. It was also submitted that because an offence against s.112(1) where the proceeds do not exceed $15,000 can be dealt with in the Local Court, $25,000 should be regarded as being in the lower end of the range for offences dealt with in this Court. I am not confined in my consideration of the seriousness of this offence to those that are dealt with in this Court. I am looking generally at offences against s.112(1). Despite these submissions I remain of the view that the value of the loss is more serious than would usually be encountered in offences of this type.

90 I do bear in mind in my assessment of objective seriousness that these were offences committed in commercial as opposed to private premises, the latter generally being regarded as more serious.

91 Another matter to bear in mind in relation to this offence is that it was a repeated incursion into the same premises, one of the factors said to enhance the seriousness of such an offence: see R v Ponfield (1999) 48 NSWLR 327.

92 In assessing the seriousness of the first offence, I am satisfied that it too was planned criminal activity. Rather than accessing a hole in the roof that was already there, on this occasion there must have been a plan as to how to effect the break in. Presumably some tools or equipment would have been necessary. There is no evidence before me as to the cost of rectifying the damage that was caused but creating a hole in the roof to gain entry obviously amounted to significant damage and it would undoubtedly have put the club, or its insurers, to expense.

93 Before turning to the roles played by each offender, and just looking at the objective seriousness of the offences overall, I am satisfied that each is in the middle of the range.

94 In some of the submissions on this topic there was reference to features which were absent, such as there being no-one present in the premises, and there being no injury or violence. Care is needed in relation to such matters because I am assessing the seriousness of offences against s.113(1) and s.112(1) and not such offences committed in circumstances of aggravation.

95 As I indicated earlier, I am largely limited to the Agreed Facts in determining the roles played by each of the offenders. Spice and Thompson must be regarded as equally culpable for the events at and within the club – the break in to the premises and, in relation to the second offence, the theft of the money from the safe. The Agreed Facts indicate that Spice told police that in relation to both offences he waited outside as a lookout but without my being able to have recourse to the oral evidence on that topic I am not prepared to accept the truth of that claim.

96 In relation to the offender McGregor, her role was a lesser one than the two male offenders in that she acted as the driver and was not actively involved in the events at the club.

97 In Richardson’s case it is necessary to have recourse to the oral evidence because the Agreed Facts are deficient in describing her involvement. For the first offence she has pleaded guilty to being an accessory after the fact. The maximum penalty for that is considerably less than the penalty faced by her co-offenders. Her culpability lies in responding to a phone call from Spice and going to pick him up and take him away from the scene, knowing that he had been involved in an attempt to steal money from the golf club. She was aware that damage had been caused to the ceiling and she passed on to the co-offenders that this damage remained unrepaired, knowing that they would use this information in committing the second offence. She shared in the proceeds. Whilst Ms Richardson’s role was less active than McGregor’s, the breach of trust involved in passing on information to her co-offenders at the expense of her employer is a countervailing matter. I would assess the roles of the two women in the second offence as about equal.

Comparative cases

98 Ms Robinson, on behalf of the offender McGregor, referred me to a number of appellate decisions concerning sentences for s.112(1) offences and also, as did the Crown, to statistics maintained by the Judicial Commission. Appropriately, Ms Robinson conceded that the statistics must be viewed with caution. I do not regard the cases, or the statistics, as establishing any particular pattern or range of sentencing that is relevant to the case at hand. They are of use, but only minimally. I do note, however, that the statistics indicate that the vast majority of offenders dealt with in this Court for an offence against s.112(1) receive a full-time custodial sentence.

General sentence considerations

99 I have earlier referred to the need for a sentence to bear an appropriate relationship to the objective seriousness of the offence. General deterrence is an allied consideration. Again, I find a useful reminder of this in the written submissions on behalf of the offender McGregor with reference to the judgment of Hunt CJ at CL in R v Gordon (1994) 71 A Crim R 459 at 468:

“Except in well-defined circumstances such as the youth or the mental incapacity of the offender, public deterrence is generally regarded as the main purpose of punishment, and the subjective considerations relating to the particular offender (however persuasive) are necessarily subsidiary to the duty of the courts to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who may otherwise be tempted by the prospect that only light punishment will be imposed. Retribution, or the taking of vengeance for the injury which was done by the offender, is also an important aspect of sentencing. Not only must the community be satisfied that the offender is given his just deserts, it is important as well that the victim, or those who are left behind, also feel that justice has been done.

What all of those principles make clear is that rehabilitation (or reform) – the hope that the offender will be released back into the community a better person than when he or she left it – is only one of the purposes of punishment and that, even when some measure of rehabilitation has been achieved, such a subjective consideration remains necessarily subsidiary to the need for the sentence to act as a deterrent to the public”.

100 Reference should also be made to s.3A Sentencing Procedure Act:

“The purposes for which a court may impose a sentence on an offender are as follows:

(a) to ensure that the offender is adequately punished for the offence,

(b) to prevent crime by deterring the offender and other persons from committing similar offences,

(c) to protect the community from the offender,

(d) to promote the rehabilitation of the offender,

(e) to make the offender accountable for his or her actions,

(f) to denounce the conduct of the offender,

(g) to recognise the harm done to the victim of the crime and the community.”

101 As was pointed out in Veen v The Queen (No 2) (1988) 164 CLR 465 at 476, these purposes overlap and sometimes conflict. It is a matter of achieving the appropriate balance, all the while bearing in mind the principles espoused in authorities such as those I have specifically referred to - Dodd, McNaughton and Gordon.

102 Having regard to the seriousness of the offences as I have found, even in the cases of those offenders who I have found played a lesser role, I am satisfied that no sentence other than imprisonment is appropriate.

103 In relation to the offenders Spice and Thompson, because of the principal role they each played in the commission of the offences I am satisfied that sentences to be served by anything other than full-time imprisonment would not be an appropriate reflection of the objective gravity of the offences, notwithstanding the significant subjective features that have been highlighted in their respective cases.

104 In relation to the offenders Richardson and McGregor, it is primarily because of the significantly lesser role they each played, in addition to their most favourable subjective cases, that I am going to order that the sentences be other than full time custodial ones. In relation to Ms McGregor, I have had regard to the assessment by the Probation and Parole Officer. However, I am satisfied of each of the matters listed in s.66 Sentencing Procedure Act.

105 Submissions were made that I should have regard to the fact that the s.113(1) offence is one that could have been dealt with in the Local Court. Obviously it was not because of the necessity to commit the offenders to this Court for sentence in respect of the s.112(1) offence. Nevertheless, it is something I have borne in mind as, in accordance with Pearce v The Queen (1998) 194 CLR 610, I must determine sentences that are appropriate for the individual offences.

106 Having done so, I must then consider questions of concurrency or accumulation of sentences and the principle of totality. In this regard, I take into account the relationship between the two offences, the second being virtually a continuation of the criminal activity or plan that was commenced with the first. The fact that there were two break ins to the premises rather than one means there is additional criminality that warrants some additional degree of punishment. However, the degree of accumulation I propose will be modest.

107 Where I am imposing full-time custodial sentences they will be back-dated to reflect periods of pre-sentence custody.

108 There are special circumstances in each case for reducing the proportion of the sentence represented by the non-parole period. These are that it is the offender’s first experience of imprisonment and that they should be given a greater period in the community on parole to further their rehabilitation. There is also the fact that there will be a degree of accumulation of sentences that I have just mentioned.

Sentence

Each: Convicted.

109 Spice

Break and enter with intent: Sentenced to imprisonment comprising a non-parole period of 1 year 2 months and a balance of the term of 5 months. The sentence is to date from 30 September 2008. The non-parole period expires on 29 November 2009.

Break, enter and steal: Sentenced to imprisonment comprising a non-parole period of 1 year 6 months and a balance of the term of the sentence of 1 year 3 months. The sentence is to date from 30 December 2008. The offender will be released on parole on the expiration of the non-parole period on 29 June 2010. Parole will be subject to supervision by the Probation and Parole Service.

Overall, that is a sentence of 3 years with a non-parole component of 1 year 9 months and a parole period of 1 year 3 months.

110 Richardson

Accessory after break and enter with intent: Sentenced to imprisonment for comprising a non-parole period of 5 months and a balance of the term of the sentence of 2 months. I order that the sentence be served by way of periodic detention. The sentence is to commence with the offender attending the Bathurst Periodic Detention Centre by 8.30am on Saturday 15 November 2008. The non-parole period expires on 14 April 2009.

Break, enter and steal: Sentenced to imprisonment comprising a non-parole period of 9 months and a balance of the term of the sentence of 10 months. The sentence is to commence on 15 February 2009. The offender is to be released on parole on the expiration of the non-parole period on 14 November 2009. I order that the sentence be served by way of periodic detention.

Total sentence is one of 1 year 10 months with a non-parole component of 1 year.

111 Thompson

Break and enter with intent: Sentenced to imprisonment comprising a non-parole period of 1 year 2 months and a balance of the term of 5 months. The sentence is to date from 18 October 2007. The non-parole period expires on 17 December 2008.

Break, enter and steal: Sentenced to imprisonment comprising a non-parole period of 1 year 6 months and a balance of the term of the sentence of 1 year 3 months. The sentence is to date from 18 January 2008. The offender will be released on parole on the expiration of the non-parole period on 17 July 2009. Parole will be subject to supervision by the Probation and Parole Service.

Overall, that is a sentence of 3 years with a non-parole component of 1 year 9 months and a parole period of 1 year 3 months.

112 McGregor

Break and enter with intent: Sentenced to imprisonment comprising a non-parole period of 9 months and a balance of the term of the sentence of 3 months. I order that the sentence be served by way of periodic detention. The sentence is to commence with the offender attending the Wollongong Periodic Detention Centre by 8.30am on Saturday 15 November 2008. The non-parole period expires on 14 August 2009.

Break, enter and steal: Sentenced to imprisonment comprising a non-parole period of 9 months and a balance of the term of the sentence of 9 months. The sentence is to commence on 15 February 2009. The offender is to be released on parole on the expiration of the non-parole period on 14 November 2009. I order that the sentence be served by way of periodic detention.

The total sentence is one of 1 year 9 months with a non-parole component of 1 year.

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