R v Tregonning

[2009] NSWDC 430

CITATION:	R v TREGONNING [2009] NSWDC 430
HEARING DATE(S):	21 August 2009
EX TEMPORE JUDGMENT DATE:	21 August 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	Sentenced to imprisonment I set a non-parole period of two and a half years and set a head sentence of five years.
CATCHWORDS:	CRIMINAL LAW - Sentence - Aggravated break, enter and steal - Breach of parole - Mental illness
PARTIES:	The Crown Kylie Katrina Tregonning
FILE NUMBER(S):	DC 2009/11/0507
SOLICITORS:	Director of Public Prosecutions

SENTENCE

1 HIS HONOUR: Kyle Tregonning pleaded guilty in the Local Court to an offence of aggravated break, enter and steal. In order to reflect the utilitarian value of the plea, the sentence I will ultimately impose upon her is twenty-five per cent less than it would otherwise be.

2 Ms Tregonning has been in custody for a significant part of her life. Recently she was serving a sentence for break, enter and steal. The non-parole period expired in October 2007. Less than two months later she had breached her parole and was back in custody. She remained there until 12 February 2009 when she was again released to parole. A mere eleven days later she committed the offence which now brings her before the court.

3 She explains that she was in a halfway house, but when they discovered that she had purchased or used some marijuana she was told to leave, and was thus homeless. She has been a drug user for many years, using either heroin or amphetamines, depending on what was available.

4 She says that she met up with another drug user, who said that he could go and get either drugs or money from a friend of his. Ms Tregonning waited, but when the man had not come back for a while she made further inquiries and discovered that he had in fact broken into some premises. He told her to pick up as much stuff as she could. As the two of them were doing this, the owner of the apartment came home. He saw two strangers in his lounge room and gave chase. The offender’s friend ran away, as did the offender herself. She was caught.

5 The property found upon her consisted of a couple of wrist watches and coins, a mobile phone, headphones and a Westpac bank card. The facts are silent as to whether the victim of the offence lost other property. The facts are silent as to whether the man who had not been caught could perhaps have taken other property away with him.

6 After the owner of the apartment grabbed Ms Tregonning the police arrived, she was arrested and has remained in custody since that date.

7 She has had an upbringing which can fairly be described as traumatic. She is Aboriginal and has suffered some of the hardships which are commonly associated with Aboriginal people as she grew up. In addition, she has suffered from a former boyfriend being killed in a motorcycle accident, her sister dying of cancer, and her mother then telling her that she would have preferred that it was her, that is the offender, who died rather than her sister. She was sexually assaulted as a child, and although she has five children none of them have lived with her for any significant period. This is no doubt in the best interests of the children because of the lifestyle pursued by the offender.

8 She is a drug user. She is addicted to drugs and she commits crimes in order to satisfy that addiction. Indeed, as I have made clear, this offence was committed by the offender as part of her desire to obtain either heroin or amphetamines.

9 The offender’s criminal history and the fact that she was on parole at the time of this offence demonstrate a continuing attitude of disobedience towards the law.

10 The offence carries a maximum penalty of twenty years with a standard non-parole period of five years. That standard non-parole period is not of direct application because of her plea of guilty, but it remains as a guidepost to the sentence I should impose. The fact that the offence is one of those which Parliament has attached to standard a non-parole period is indicative of the seriousness with which Parliament has said offences of this kind should be treated.

11 I am satisfied that the offence is below the mid range of objective seriousness for offences of this type. There is no evidence that any internal damage or ransacking of the victim’s premises and the offence occurred at a time when it was entirely possible that the premises would be vacant and, indeed, they were at the time the initial break-in occurred. There is no evidence of any significant quantity of material being taken, nor is there any evidence that some of the property was unrecovered. In those circumstances the objective seriousness is, as I have said, below the middle of the range.

12 There is no evidence of any significant planning, at least on behalf of the offender. If she is to be believed, her decision to become involved in the offence was a spontaneous one. Nevertheless, she did in pursuit of her desire to obtain drugs, seemingly without hesitation involve herself in this offence as soon as she realised what was going on.

13 One of the most significant matters relevant both to the offender’s upbringing and the sentence to be imposed concerns her mental illness. A report of Dr Wilcox, received without objection, sets out in some detail the difficulties Ms Tregonning has. Her mental illness seems to be related to the offence too through her drug use, so it’s appropriate that I give less weight to general deterrence than would otherwise be the case. However, notwithstanding a submission by Mr Rogers, I am satisfied that personal deterrence remains of significant importance, even if the offender herself is less influenced by the prospect of time in custody than other people might be.

14 It is also important to bear in mind the loss that the community feels through offences of this kind. The loss extends beyond the feelings expressed or felt by the victim in this case. Offences of this type are distressingly common, and law abiding citizens, especially in some areas, are forced to, in effect, barricade their homes in order to deter people such as the offender who care very little for the legitimate property rights of others in the community.

15 A sentence which will effectively prevent Ms Tregonning from committing offences of this kind in the future by ensuring that she remains in custody for some time is necessary. Of course, I am not entitled to increase the sentence I would otherwise impose because of preventative detention beyond that which is appropriate given the objective seriousness of her conduct. No, I have not done that.

16 The prospects of Ms Tregonning’s rehabilitation are poor. I will be making a recommendation to do what I can to promote that possibility. The offender has been in custody since 23 February 2009, and although some part of that sentence was referable to her earlier offending, I will date the sentence I am about to announce from then as a matter of discretion.

17 I sentence the offender to imprisonment. I set a non-parole period of two and a half years to date from 23 February 2009, which will expire on 22 August 2011. I set a head sentence of five years.

18 Although because of the length of the sentence I have just announced, it is not me who sets Ms Tregonning’s conditions of parole. It is my strong recommendation that upon release to parole she is supervised by the Probation and Parole Service closely and, indeed, intensively, otherwise Ms Tregonning will be back in custody at great cost to both her and the community.

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