R v Sullivan

[2019] NSWDC 810

District Court

New South Wales

Medium Neutral Citation:	R v Sullivan [2019] NSWDC 810
Hearing dates:	5 December 2019
Decision date:	05 December 2019
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Imprisonment for 3 years with a non parole period of 2 years.
Catchwords:	CRIME - SENTENCE - break, enter and steal
Legislation Cited:	Crimes Act 1900 (NSW), s112(1)(a).
Category:	Sentence
Parties:	Regina (Crown) Trevor Sullivan (Offender)
Representation:	Ms Chan (ODPP Campbelltown) Mr Townsend (Counsel for the offender)
File Number(s):	2019/70885
Publication restriction:	Nil

Judgment

1. Trevor Sullivan, you appear for sentence today in relation to one offence; that is, break and enter a dwelling, house or building and stealing.

2. This involves a contravention of s 112(1)(a) of the Crimes Act. The maximum penalty for that offence is 14 years' imprisonment and there is no standard non-parole period.

3. The facts surrounding the offence are contained in an agreed statement of facts, supplemented by other material which is not in dispute.

4. The facts can be summarised sufficiently for my purposes as follows.

5. In late February 2019 you were on parole for the offence of aggravated break and enter and commit serious indictable offence in company.

6. Whilst you were on parole, amongst other things, you broke into the Bringelly Public School somewhere between 27 and 28 February 2019 and, having broken into that school (causing relatively minor damage in the process) you stole some valuable school equipment. It included what is described as Sphero robotics kit and also 16 laptops. The total value of what you stole is a little under $9,000.

7. It is true, as your experienced solicitor has submitted, that you did not break into a home - and therefore the trauma which, more often than not, attends upon the breaking in of a house was not carried out by you. But to break into a school and to steal valuable equipment from primary school students is a serious matter.

8. You were not very sophisticated or clever in this break-in because you left a set of fingerprints behind. This suggests that you were in truth under the influence of drugs at the time - because a rational person would have realised that some simple gloves would have prevented fingerprints being left behind.

9. Because of your long criminal history, it did not take the police very long to connect you to that break-in. You were arrested on 5 March 2019.

10. Unsurprisingly, Mr Sullivan, your parole was revoked - but it was revoked not only because of this offence. You committed other offences whilst you were on parole; and you also resumed your consumption of ice.

11. In terms of its objective seriousness for an offence of its kind, I do not accept the submission of the Crown that it is just below the middle of the range. In my opinion, the objective seriousness for an offence of its kind is somewhere equidistant between the middle and the bottom of the range.

12. The offence is additionally aggravated by the fact that you were on parole at the time.

13. You are now 37 years of age and you have spent a significant part of your adult life in gaol.

14. You had an unfortunate upbringing. It started before you were born because your mother - or I should say the woman who gave birth to you for she never functioned as a mother - but the woman who gave birth to you was a heroin addict; and she used heroin while you were in her womb.

15. When you were born, your father effectively raised you on his own - with some assistance from his parents - and he did his best. He was a hardworking and honest man. He gave you the best upbringing he could. I am not persuaded that he was abusive towards you. Ms Godbee (who prepared a psychologist’s report) has drawn that inference. I think it is wrong. In my opinion you were brought up in a loving and supportive environment.

16. Apart from the fact that you were exposed to heroin even before you were born, you also were dyslexic; and the difficulty that a child with dyslexia has in being educated is well known. It is a considerable handicap; and it often results, as in your case, in poor school results, and in being bullied at school. As a result, you left school at the end of year 7. You were “invited” to leave by the principal but it seems that the invitation was one that was too good to refuse.

17. Even though you were brought up in a loving household, you left your father's house at a very young age - 14. He did not want you to leave the house. You were not thrown out. You got it into your head that you were “a big man” and you wanted to leave, to “hang out” with people who were of no help to you whatsoever.

18. You started using alcohol before you left home, when you were 12. You used cannabis for a while when you were a teenager but for most of your teenage years you did not use drugs.

19. You started using ice in your early 20s - and since then it has dominated your life. It has ruined your first relationship. It excluded you from engaging with the two children from that relationship. It has meant that you have not properly worked. It has ruined your life.

20. To support your ice habit (and the gambling habit which accompanies it) you have resorted to crime, because in the relatively recent past you have been spending $1,500 a week on drugs and you are not working. There is only one place that that money could come from: criminal activity.

21. In addition to your drug habit, you have the very serious mental illness of schizophrenia. You know that using ice cannot help but will make that condition worse.

22. It surprises me, Mr Sullivan, to read in Ms Godbee's report that you do not believe you need an intensive drug and alcohol program given all that I have said.

23. You know that when you have been in custody you have not accessed illegal drugs - I (and you both) know that it is easy to get drugs in gaol. But when you are in gaol and the structure of gaol, you do not use it because there is no suggestion in the material that you have been caught using drugs. You would not be working in the kitchen of the gaol if you were suspected of using drugs. The fact that you are in the kitchen means that the officers in the gaol complex have confidence in you.

24. But when you are out in the community you cannot help yourself. Why the penny has not dropped that you need an intensive drug and alcohol program I do not know, because it is clear to me that you do.

25. I mentioned earlier that your first relationship had been ruined by ice and it has ruined your second one. You have two children with that lady. She is the only person in the community who supports you - and you have terminated that relationship, not her. You have done it because you do not want her to be waiting for you.

26. The Crown has made a very strong submission, Mr Sullivan, that your prospects for rehabilitation are “dismal”. That is a very strong word. Your track record suggests that there is some basis for that submission. By “your track record”, I mean when you are out of gaol. But when you are in gaol, as I have just said, you do not use the drugs.

27. I am not therefore prepared to accept that your prospects are dismal. Taking all of the matters into account, I think they are guarded.

28. Ms Godbee tells me that you could be referred in custody to an intensive drug and alcohol treatment program; and your solicitor has told me that such a compulsory program is available in the John Morony facility where you are currently detained. It is unfortunate that no-one has given me the details of these programs.

29. In forming the sentence, Mr Sullivan, I have given some consideration as to which is going to be the best context in which you can address your drug problems and, regrettably, I think the answer is: in custody.

30. Except for your plea of guilty, I would have sentenced you to a term of imprisonment of 4 years. But because of the plea of guilty, the term of imprisonment will be 3 years.

31. By having regard to totality, that sentence will date from today.

32. I am going to make a finding of special circumstances to only slightly vary the non-parole period ratio. To strictly apply the 75% would require the non-parole period to be 2 years and 3 months. I shall fix a non-parole period of 2 years. Therefore, you will be again eligible for parole on 4 December 2021.

33. I fix a balance of 1 year to date from 5 December 2021.

34. I recommend to the Commissioner of Corrective Services that you be referred to the intensive drug treatment program at the John Morony Correctional Facility.

Decision last updated: 19 February 2020