R v Steven William SHEARER

[2007] NSWDC 18

CITATION:	R v Steven William SHEARER [2007] NSWDC 18
HEARING DATE(S):	09/02/2007
JUDGMENT DATE:	9 February 2007
EX TEMPORE JUDGMENT DATE:	9 February 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	See paragraph [12]
CATCHWORDS:	Criminal Law - Sentence - Aggravated break enter and steal - Standard Non Parole Period
LEGISLATION CITED:	Crimes Act Mental Health Act
PARTIES:	The Crown Steven William Shearer
FILE NUMBER(S):	06/11/0964
SOLICITORS:	NSW DPP Legal Aid Commission

SENTENCE

1 HIS HONOUR: Steven William Shearer appears for sentence today having pleaded guilty at an early opportunity to an offence of aggravated break enter and steal. The charged circumstance of aggravation relied on by the crown was that the offender was in company with another person, Alexander Parkes. I am to sentence Mr Parkes later next month.

2 However, it is to be noted that the crown could also have relied on other circumstances of aggravation. There were people at home at the time of the offence, it being 8 o’clock in the morning, and under s 105A(2A) of the Crimes Act in those circumstances the offender is deemed to have known that there were people home, unless he is able to prove to me that he could not reasonably have believed that there was there was no-one in the premises. The offender has not given any evidence in this matter but relied on written materials. They are not sufficient in my view to overcome the burden which is imposed upon him.

3 Another circumstance of aggravation the crown could have relied on is that the offender was armed with an offensive weapon. It is here that I have to be careful not to double count because as well as sentencing him for the matter on the indictment I am to take into account an offence of avoiding apprehension by use of an offensive weapon under s 33B of the Crimes Act. Thus if I were to regard the fact that the offender was armed as a circumstance of aggravation for the substantive offence, and then take it into account also in the Form 1 matter, there would be double counting.

4 I mention these additional aggravating features to indicate just how serious this offence was. It was not your standard break, enter and steal, by any means. What happened on 4 July last year was this; the offender went to a home in North Narrabeen. There are suggestions that the offender believed that it was a cocaine dealer who lived in the home, but he was wrong about that. In any event, whether he thought there was a cocaine dealer living there or not, he went there with the intention of stealing items from the home. He broke in by forcing some locks and began to remove electrical equipment, including a plasma TV and a Foxtel decoding box. The noise of the offender breaking in and removing the electrical equipment has caused one of the occupants of the premises to walk downstairs to see what was going on. She had her seventeen month old grandchild in her hands, and was on the phone as she walked downstairs. She saw what was happening and immediately, and understandably, screamed. Her partner therefore came down the stairs as well. He grabbed the offender and held him. It was at this stage that the offender pulled the syringe from his right hand pocket and pointed it towards the gentleman who had hold of him, which caused him, again quite understandably, to release the offender, who ran away. The offender was at the time in company with another man, as I have mentioned; he was remaining outside as the lookout.

5 A short time later police went to the offender’s home. He and Mr Parkes, who was there with him, matched the description given by the victims of the offence and so they were arrested. The offender has remained in custody since that day.

6 The offender comes from a loving family. He is very fortunate indeed to have the support of his parents who are present here today. They have supported him, despite his relatively regular offending in the past. The offender has committed similar offences and been dealt with by being sentenced to periods of imprisonment in the past. He has also been dealt with under the provisions of the Mental Health Act due to a circumstance I will now set out. The offender may well have suffered from some brain damage as a result of a Rhesus factor complication, which became apparent either at or soon after his birth. He also has displayed symptoms of mental illness in the past. He has described symptoms of psychotic origin and has been a person who is keen to obtain both prescription and non-prescription drugs which he has used regularly. Despite his parents’ best endeavours to prevent their son being prescribed with inappropriate medication he has been able to have various prescription drugs prescribed for him. In fact, on the very day of committing this offence there is evidence to suggest that the offender was under the influence of prescription medication. There is certainly evidence that he was not thinking as clearly as he might in the absence of such medication.

7 The fact that the offender has possibly suffered brain damage and certainly has suffered at time from mental illness, has multiple consequences. It makes the offender an inappropriate person to visit upon a sentence which has a substantial component of general deterrence built into it. It also suggests the possibility that he will do his time in custody harder than would otherwise be the case. I note from Dr Westmore’s report that he has spent some time in the mental health unit in Silverwater prison but has recently been discharged. However, although general deterrence may play less of a role in the sentence I will shortly announce, there is no reason that I should not impose a sentence which contains within it a substantial component of personal deterrence. The offender seems to be aware, from the material before me, that if he fails to take his medication and if he continues to take prescription drugs to excess, and consume illegal drugs, then he will commit criminal offences. The consequences of doing so need to be brought home in a very firm way. It is for that reason that the offender himself needs to be personally deterred from indulging in activities which will necessarily lead to him committing further offences.

8 The offence carries with it a standard non-parole period of five years which remains as a guidepost despite the plea of guilty. The maximum penalty is as high as twenty years. Those two factors indicate the seriousness with which the Legislature, and I believe the community, regard offences of this nature. The community is rightfully concerned about the prevalence of offences where such as the present, where seemingly without care, offenders break into other people’s homes to get valuable items, simply so that they can be swapped for drugs. The matter to be taken into account is also a serious matter involving the use of a weapon as an element of the offence. No doubt, Mr Shaw, the man who had the weapon pointed at him, experienced a great deal of, at least, anxiety at the possibility that the syringe would actually be used upon him.

9 There are prospects for the offender’s rehabilitation but no one would suggest that they can be described as good, at this stage. As I mentioned he is very fortunate to have the support of supportive and loving parents who, nevertheless, have an appropriate and realistic attitude towards the prospects of him living with them upon his release from custody.

10 The offender pleaded guilty at an early stage, and so I will discount the sentence I would otherwise have imposed by twenty-five per cent to reflect that circumstance.

11 Mr Fraser asked that I find special circumstances. I will do so. It is clear from Dr Westmore’s report that if the offender is to avoid spending substantial parts of his life in gaol he will be required to make efforts himself with long term community based drug rehabilitation programs. He needs to maintain regular contact with the Mental Health Service which, as Dr Westmore suggests, should have a multidisciplinary team of social workers, psychologists and psychiatrists who are able to deal with the many problems that the offender presents.

12 The offender is sentenced to imprisonment. I set a non-parole period of eighteen months to date from 4 July 2006. It will expire on 3 January 2008. I set a head sentence of three years. As well as the standard conditions of parole upon his release from parole the offender is to obey all reasonable directions of the Probation and Parole Service, including maintaining and attending any long term community based drug rehabilitation programs recommended by the Probation and Parole Service. He is also to maintain regular contact with the Mental Health Service, preferably one which has a multidisciplinary team attached to it, including social workers, psychologists and psychiatrists.

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