R v Steven Wayne Kirby

[2009] NSWDC 401

CITATION:	R v Steven Wayne KIRBY [2009] NSWDC 401
JUDGMENT DATE:	11 December 2009
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	The bonds are revoked. An overall sentence of 3 years and 4 months imprisonment with a non-parole period of 2 years is imposed.
CATCHWORDS:	CRIMINAL LAW - sentence - breach of s 9 and s 12 bonds by failing to be of good behaviour - whether period of time spent in custody should be taken into account in imposing suspended sentences - procedural steps
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 s 9, s 12, s 24, s 32, s 98, s 99 Crimes Act 1900 s 112(2), s 113(1)
PARTIES:	Regina Steven Wayne Kirby
FILE NUMBER(S):	2009/6900
COUNSEL:	Mr D Clarke (for Mr Kirby)
SOLICITORS:	Ms White (NSW DPP)

JUDGMENT

1. I am sentencing Steven Wayne Kirby. He comes before me for sentence because he has breached some bonds imposed by another judge.

2. On 23 February 2007 his Honour Judge C E O’Connor QC sentenced Mr Kirby for four groups of offences. In each case he sentenced Mr Kirby to periods of imprisonment but in each case suspended those terms of imprisonment under s 12 of the Crimes (Sentencing Procedure) Act 1999. In his Honour’s remarks on sentence, delivered on that day, his Honour set out the detail of the crimes that he was sentencing Mr Kirby for and Mr Kirby’s personal circumstances and his Honour set out - with respect in very clear terms - the reasons for the sentences which his Honour imposed.

3. Since then Mr Kirby has breached the bonds which his Honour imposed. There are three breaches, all of which were offences themselves. The breaches occurred on 1 November 2007, 24 May 2008 and 30 November 2008.

4. On the first occasion Mr Kirby was committing drug related offences for which he was convicted on 5 May 2008. On the second occasion he assaulted a woman in the context of domestic violence. He was sentenced again in Wentworth Local Court on 1 September 2008 and on the third occasion he damaged some property for which he was sentenced in the Wentworth Local Court on 3 March 2009. In each case he was given a bond under s 9 of the Crimes (Sentencing Procedure) Act.

5. A breach report was obviously supplied to his Honour Judge O’Connor who indicated through my associate that he was happy with another judge dealing with the breach.

6. His Honour imposed for an offence of break and enter with intent to steal under s 113(1) of the Crimes Act 1900 a sentence of twelve months imprisonment. His Honour imposed for an offence of break and enter and commit serious indictable offence - in fact, there were four of those offences -sentences of fourteen months imprisonment which were to run concurrently. His Honour imposed for two offences of aggravated break enter and steal and commit serious indictable offence contrary to s 112(2) of the Crimes Act 1900 sentences of eighteen months imprisonment which were to run concurrently and his Honour imposed for a further aggravated break and enter and commit serious indictable offence a sentence of two years. In respect of that offence his Honour was taking into account four other offences under a form provided for according to s 32 of the Crimes (Sentencing Procedure) Act.

7. The matter comes before me and the first matter which I have to determine under s 98 of the Crimes (Sentencing Procedure) Act is whether I am satisfied that Mr Kirby has failed to comply with any of the conditions of a good behaviour bond. I am so satisfied. The conditions included good behaviour and clearly Mr Kirby has breached the terms of those bonds insofar as he has not been of good behaviour.

8. I then have three choices, the third of which is that I may revoke the bond. Because the bonds were imposed under s 12 of the Act I am constrained by subs (3). Mr Clarke, who appears for Mr Kirby, does not submit that his client’s failure to comply with the conditions of bond was trivial or that there were good reasons for excusing his client’s failure to comply with conditions of the bond. With respect there could be no other position than the position taken by Mr Clarke.

9. Accordingly, under s 98(2)(c) of the Crimes (Sentencing Procedure) Act 1999, I revoke all of the bonds imposed upon Mr Kirby.

10. The next step is that is under s 99 of the Act. I note that a consequence of my order revoking the bonds is that the orders by his Honour suspending the sentences imposed have ceased to have effect. Section 99(1)(c)(ii) directs me to s 24 of the Act. I am directed to take into account any time which Mr Kirby has been held in custody. I am informed and accept that he was arrested on 27 November 2009 and that the sentence should date at least from that date.

11. Mr Clarke submits that I should take into account a period of some eighty-eight days which his client spent in custody before being sentenced by his Honour Judge O’Connor.

12. Ms White, who appears for the Director of Public Prosecutions, submits that I may take that into account but should make no allowance in this sentence. That is for the reason that his Honour in deciding to suspend the sentences which he imposed specifically referred to and took into account the period of eighty-eight days which had been served by Mr Kirby.

13. I agree with Ms White’s submissions. I take into account that period of eighty-eight days but I do not propose to make any allowance for it in these sentences because a significant allowance has already been made by Judge O’Connor.

14. Returning to s 24, clause (b) requires me to take into account the fact that Mr Kirby has been the subject of such an order or bond. I have taken into account that he was and that for a period of some nine months he was of good behaviour. That, however, was short of half of the period of the bonds. I need to take into account anything done by Mr Kirby in compliance with his obligations. There is no evidence of non-compliance during the period of the first nine months. There is, however, evidence in the form of a presentence report from the Probation and Parole Service that a referral to a residential rehabilitation centre was unsuccessful. Mr Kirby had to leave after about a week because he brought cannabis into the facility. There are very limited, if any, matters which I can take into account so far as compliance with the bond is concerned.

15. I, therefore, need to finally return to Part 4 of the Crimes (Sentencing Procedure) Act in fixing these sentences as I am directed to by s 99 of that Act. And the focus of the submissions by Mr Clarke and Ms White were relating to the fixing of the non-parole period in accordance with s 44. Mr Clarke called his client to give evidence. He had taken himself off to South Australia. I make two observations about that. The first was that he was probably in breach of his parole and when required had to be extradited although I did not take that into account as an aggravating feature. The second observation is a positive observation; he went to stay with the mother of his daughter, Kalani, because he wanted to be with his daughter who is aged three. He also secured employment picking oranges and that for Mr Kirby was a good move. Given the history which Judge O’Connor set out in his Honour’s remarks on sentence, Mr Kirby is keen to help his daughter and to develop a relationship with her so that she knows her father. He acknowledges that he did not volunteer his presence to police when cross-examined by Ms White.

16. Mr Clarke submits that the non-parole period should be reduced so that the balance of the term should be greater than one third of the non-parole period. He points to his client’s vulnerability because of findings made by his Honour and the evidence about his client’s mental capacity. He argues that that would lead to a difficult time in prison and that I should take that into account. Ms White argues that his Honour Judge O’Connor QC has already taken that into account. His Honour did, indeed, refer to Mr Kirby’s mental capacity in the context of general deterrence and with respect correctly referred to it as a matter relevant to that.

17. However, I accept Mr Clarke’s submission in this regard. The purpose of taking into account his client’s borderline mental capacity is not related to general deterrence but specifically related to fixing the proportion between the non-parole period and the balance of the term. It has a different function.

18. I also take into account - as Ms White mentioned would be appropriate - the fact that it was Mr Kirby’s first time in custody and that he is only twenty years old. I need to have in mind that any sentence I impose at the end must be proportionate to the gravity of the offences which were set out by his Honour Judge O’Connor in his remarks on sentence.

19. I accept Mr Clarke’s submission that there should be some partial accumulation and partial concurrency. I do not think that they should be completely concurrent because, as Ms White said, there are separate victims to these crimes. But there needs to be some partial accumulation because it was, as described, a spate of break and enters within a period of a couple of months committed by Mr Clarke.

20. I have determined the sentences which I will impose in accordance with s 44 of the Crimes (Sentencing Procedure) Act.

21. In respect of the offence of break enter and steal against s 113(1) of the Crimes Act I set a non-parole period of eight months to date from 27 November 2009 and to expire on 26 July 2010. The balance of the term will be four months to commence on 27 July 2010 and to expire on 26 November 2010.

22. In respect of the four offences of break and enter and commit serious indictable offences I fix non-parole periods of ten months to run concurrently with one another. They are to commence on 27 February 2010 and to expire on 26 December 2010. The balance of the term will be four months to commence on 27 December 2010 and to expire on 26 April 2011.

23. In respect of the two offences of aggravated break and enter and commit serious indictable offence against s 112(2) of the Crimes Act, I set concurrent non-parole periods of thirteen months to commence on 27 June 2010 and to expire on 26 July 2011. The balance of the terms will be five months commencing 27 July 2011 and expiring on 26 December 2011.

24. In respect of the aggravated break enter and steal and commit serious indictable offence in company against s 112(2) of the Crimes Act taking into account the offences on the Form 1, which his Honour did as well, I set a non-parole period of eight months to commence on 27 March 2011 and to expire on 26 November 2011. The balance of the term will be sixteen months to commence on 27 November 2011 and to expire on 26 March 2013.

25. I find special circumstances for altering the proportion between the non-parole period and the balance of the term in respect of that last sentence. Hence the overall sentence will be three years and four months with a non-parole period of two years. And that means I do not direct parole, does it not? Yes. First, mathematics.

WHITE: Would your Honour mind repeating the sentence for the last offence?

HIS HONOUR: A non-parole period of eight months commencing 27 March 2011 expiring 26 November 2011. The balance of term, sixteen months commencing 27 November 2011 and expiring 26 March 2013.

No problem with the mathematics, Ms White?

WHITE: No, your Honour.
CLARKE: No, your Honour.
HIS HONOUR: Any factual errors or legal matters that I need to attend to okay.

26. Mr Kirby, I have sentenced you. Now you have got the same sentences which Judge O’Connor gave you. Your overall sentence is three years and four months and you have got to spend two years of that in gaol. The two years commence when you were arrested, 27 November 2009, last month in South Australia. That two years finishes on 26 November 2011. You’ve got just under two years to serve. On 26 November 2011, two years from now, you are eligible for parole. Whether you get parole or not is not up to me it is up to the Parole Authority. They look at what you have been doing in prison and decide to release you on parole if they think that is appropriate.

Then, as you know, you are on parole and you are on parole for sixteen months. Normally, for a sentence like that your parole would be shorter but I have made your parole longer so that you have got time to look at your life and perhaps get together with your daughter again and her mother and get some work as you are doing and perhaps even have some rehabilitation. I have allowed you extra time for that, you are also a young man. Specifically, you got your twelve months and then you got your fourteen months, your eighteen months and I have overlapped some of those so they are not just one after the other and the overall effect is as I said, forty months, three years and four months, two years in gaol from 27 November last and then you are on parole.

Anything else, Mr Clarke, Ms White?

WHITE: No, your Honour.

HIS HONOUR: You want a word with your client?

CLARKE: Yes, your Honour. Thank your Honour.

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