R v Tighe
[2016] NSWDC 412
•10 November 2016
|
New South Wales |
Case Name: | R v Tighe |
Medium Neutral Citation: | [2016] NSWDC 412 |
Hearing Date(s): | 10 November 2016 |
Date of Orders: | 10 November 2016 |
Decision Date: | 10 November 2016 |
Jurisdiction: | Criminal |
Before: | Berman SC DCJ |
Decision: | The offender is sentenced to an aggregate sentence of imprisonment consisting of a non-parole period 3½ years with a head sentence of 5½ years |
Catchwords: | CRIMINAL LAW – Sentence – Aggravated break enter and steal – On parole at time of offending |
Legislation Cited: | Crimes (Sentencing Procedure) Act |
Category: | Sentence |
Parties: | The Crown |
Representation: | Counsel: |
File Number(s): | 2015/174696 |
SENTENCE
HIS HONOUR: In 2012 the offender Aaron Tighe was sentenced in the District Court for a number of offences of armed robbery, indeed, a significant number of offences of that kind. He was released to parole in January 2015. Within a short time he was back to using drugs and ended up, as a result, committing ten offences of aggravated break, enter and steal for which I must now sentence him.
He began, whilst on parole, using synthetic drugs such as synthetic cannabis and synthetic cocaine. He obtained these from a tobacconists. He was able to pay for those drugs using cigarettes which were the proceeds of the crimes for which I must sentence him. That circumstance explains why it is that the offender focussed on cigarettes when he committed these ten offences.
I will not detail the offences in any significant way, they all followed a fairly similar format, except for one. The offender and another person, and perhaps on one occasion a third person but it is not clear, would go to small businesses, newsagencies or convenience stores, force their way inside, often using a crowbar, disguise themselves so that any CCTV cameras which were operating would not capture their identity, and take from those premises cigarettes, sometimes cash, sometimes alcohol and on one occasion two iPads.
The value of the property taken varied. Sometimes they did not get very much but at other times they took cigarettes of some value which, as I have mentioned, were apparently handed over to a tobacconist who would hand Mr Tighe synthetic drugs in return. There were ten such offences.
One offence, the offence committed on 22 May 2015, was of more seriousness than the others in that the owner of the shop who lived upstairs came downstairs in response to the noise that the offence was creating. When he got there the offender who was holding a crowbar pointed it at him and his co-offender struggled with Mr Zhu who sensibly eventually retreated fearing for his safety.
The offender pleaded guilty at the earliest opportunity to these offences and so the sentences I impose upon him will be 25% less than they would otherwise have been. I note that the maximum penalty for each offence is 20 years imprisonment with a standard non-parole period of five years. I have taken into account the maximum penalty and the standard non-parole period in determining the appropriate sentence to impose upon the offender. My reasons for not imposing the standard non-parole period in any case are to be found in these remarks on sentence.
The offender had a childhood which presented many challenges to him. His parents died when he was quite young and his childhood was described, accurately it seems, as “chaotic”. He was introduced to drugs from a young age. His father was a violent drug dealer who died in custody, his mother having died a year before. Once his parents died he was taken in by relatives, some of whom were drug users themselves. He has a criminal history which is consistent with an upbringing of the kind I have described.
Not all of us have the same abilities to make decisions in life. Some members of the community are exposed to poor role models from an early age. The decision the offender made upon his release from parole to recommence using drugs and then to fund his drug addiction through these ten offences of aggravated break, enter and steal has to be looked at in the light of his upbringing.
It is important to identify some aspects of these offences, especially as regards the question as to whether the standard non-parole period should be imposed. Aggravated break, enter and steals can be committed upon both residential and non‑residential premises. It is undeniable that offences involving residential premises are more serious than offences involving non‑residential premises. The offender’s ten crimes did involve small businesses, and whilst of course they were very distressing to the owners of such businesses and of course serious offending, when comparing these crimes with other offences of aggravated break, enter and steal the very fact that these offences involved non‑residential premises points to a lower level of objective criminality than would otherwise be the case.
Consistent with what I have just said, is another circumstance. Nothing of sentimental value appears to have been taken. As I mentioned before, there were cigarettes, alcohol, money and a couple of iPads.
Nor does there appear to have been element of gratuitous damage or vandalism. The offenders’ appear to have been interested in getting into the premises, taking property and then leaving as quickly as possible.
On the other hand it has to be recognised that the very number of such crimes means that the offender must spend a significant time in custody in order to reflect the totality of his offending.
I mentioned already that the offender was on parole at the time of these ten new offences. That is a significant aggravating factor but I have to be careful not to double count by both not giving the offender credit for any presentence custody and at the same time regarding these offences as aggravated by the circumstance I have just referred to.
In the course of submissions I suggested that I was considering commencing the sentence which I will impose for these matters from 13 June 2016, which is one year after the offender went into custody and began serving the balance of his parole. Mr Murray who appears for the offender did not speak in opposition to that. The Crown, I think, wanted the sentence to start a bit later but I am satisfied that the principles of sentencing are such that 13 June 2016 is an appropriate date.
I should briefly mention the other offender, a woman by the name of Belinda Moffitt. She was referred to the Drug Court and sentenced a short time ago to an aggregate sentence of four years and six months which was suspended. Although I do have to ensure that the offender cannot have a justifiable sense of grievance when he compares the sentence imposed upon him with that imposed upon Ms Moffitt, I do have to say I know nothing about Ms Moffitt, I know nothing about her subjective features, I do not even know whether she was on parole at the time of her offences, and so, the principle of parity can really not be applied in any meaningful way in the present case.
Since going into custody the offender has not had drugs detected in his urine or refused any urine analysis, at least no such offence appears on his custodial history.
I have no doubt that the offender wishes to leave behind a lifestyle he has led up until today, a lifestyle which is focussed on drug use, offending to obtain drugs and serving the resulting sentences in custody. The offender is on protection at the moment, at least according to the psychological report tendered today. I will take into account the possibility that he will serve further time on protection and the possibility that if he does that will involve harsher conditions of custody than those applying to the general prison population.
The offender has plans to live with his sister, a positive influence in his life, outside Sydney upon his release from custody. Despite the favourable matters concerning his rehabilitation it has to be said that his prospects for rehabilitation remain guarded. If he can give up drugs, then things are promising. If he does not, there is probably only one result, he will continue to commit offences and to continue to go to gaol for longer and longer periods until he reaches the stage where he looks back on his life and sees that it has been wasted.
There are special circumstances in this case. The offender’s longstanding use of drugs means that he will be assisted upon his release on parole by close supervision from the Probation and Parole Service. Perhaps even a residential rehabilitation will be required, that will of course be up to the parole authorities and not me.
Another circumstance suggesting special circumstances is that given the length of the sentences imposed for the armed robbery offences and the comparatively short space of time, four or five months, before the offender reoffended, we are getting towards the stage where the sentences for the armed robbery and the sentences I am about to impose should be regarded as cumulative.
I will impose an aggregate sentence. Recent amendments to the Crimes (Sentencing Procedure) Act have not removed the obligation of a sentencing Judge who imposes an aggregate sentence for offences which include offences with a standard non-parole period to specify the non-parole period which he or she would otherwise have imposed.
Accordingly, were it not for an aggregate sentence I would have imposed the following sentences:
For each offence, apart from the offence of 22 May 2015, I would have imposed a head sentence of three years with a non-parole period of 18 months.
For the offence on 22 May 2015 I would have imposed a head sentence of three and a half years with a non-parole period of two years.
The aggregate sentence I impose consists of a non-parole period of three and a half years and a head sentence of five and a half years to date from 13 June 2016.
That means that the offender will be eligible to be released to parole on 12 December 2019.
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