R v Vernon Campbell Chillie No. 1

[2006] NSWDC 36

CITATION:	R v Vernon Campbell Chillie No. 1 [2006] NSWDC 36
HEARING DATE(S):	23/6/06 29/6/06 21/8/08
JUDGMENT DATE:	25 August 2006
JURISDICTION:	District Court of NSW
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Appropriate matter for a suspended sentence pursuant to s.12 Crimes(Sentencing Procedure) Act.
CATCHWORDS:	Criminal Law - Sentence - Aggravated Break & Enter Commit Serious Indictable Offence (x2) - Crimes Act s112 (2) offences - determining mid-range seriousness - Indigenous offender - poly drug abuser - recidivist - good rehabilitation prospects.
LEGISLATION CITED:	s112 & 112(2) & s113 Crimes Act 1900 s4 Evidence Act 1995 s12 Crimes (Sentencing Procedure) Act 1985
CASES CITED:	The Queen v Gladue [1999] 1 SCR 688 R v Cuthbert [1967] 2 NSWR 329 R v Rushby [1977] NSWLR 597 R v Hayes[1984] 1 NSWLR 740
PARTIES:	Regina Chillie (Accused)
FILE NUMBER(S):	06/11/0242
COUNSEL:	A Barber (Accused)
SOLICITORS:	Mr S Sail, for the Solicitor for Public Prosecutions Aboriginal Legal Service

JUDGMENT

1 HIS HONOUR: Vernon Chillie is twenty-nine years old. For more than a decade he has been getting into trouble. The first entry in his criminal history is a notification of revocation of parole and an observation of him being returned to his former custody on 9 January 1995. Presumably these are matters relating to the Children’s Court that account for him being in “former custody”.

2 His offences are primarily offences of dishonesty. He is a recidivist break and enter criminal. Several of the break and enter offences are aggravated instances of the offence, in that people are on the premises when he breaks into them.

3 Mr Chillie has pleaded guilty to two aggravated break and enter offences that occurred whilst he was on parole for similar offences. His parole has now been revoked. He has been in custody since his arrest on 25 October 2005. There is a related charge of attempting to take and drive a conveyance that he also asks to be taken into account. That offence appears on a Form 1.

4 As sentencing judge, it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentence for these two offences before this Court, committed by this offender against these victims in this community (see The Queen v Gladue [1999] 1 SCR 688 at [81]). My initial task requires an assessment of the objective criminality of the offences before the Court. I will also need to have regard to matters personal to the offender (subjective matters). The starting point for such assessments requires a sentencing judge to make findings of fact from the evidence before the Court relating to the offence and to the offender.

5 The offender rehabilitation prospects will have to be assessed, even if looking through a glass darkly. Before any sentence can be made there are likely to be technical questions relating to deterrence, discounts, whether special circumstances are to be found, totality, whether the offence attracts a standard non-parole period, as these two do, and the length of the parole period and finally, of course, the ultimate length of the term of imprisonment or other penalty that is to be imposed.

6 None of these can be commenced until the primary facts are determined. What weight needs to be given to all these matters, against the imperative that all sentencing should have as its primary focus the protection of the community, will also need to be determined (see The Queen v Cuthbert, The Queen v Rushby and The Queen v Hayes).

Facts

7 An agreed statement of facts has been tendered. At about 4am on 25 October 2003 the offender entered the premises of Lana Mahoney at 448 Glenmore Road, Edgecliff. She is a sixty-one year old female living alone in those premises. The premises are two-storey terrace type premises. Ms Mahoney was sleeping in an upstairs bedroom. Chillie entered several rooms throughout the premises, including her bedroom, while she was sleeping. From the downstairs kitchen he removed her wallet and car keys. He had inspected drawers and cupboards in the various rooms throughout the premises. He exited the premises by unlocking a rear courtyard door. Taken from the premises was, as I say, the victim’s wallet and her car keys, and included in the bag was her credit card.

8 When he left those premises, very shortly afterwards he entered a set of premises four houses down at 440 Glenmore Road. He manipulated a locking mechanism on a rear ground floor window. Again, these premises were two-storey terrace type premises, with a husband and wife asleep upstairs. He located downstairs a set of car keys belonging to a Subaru, a black wallet containing credit cards and one hundred and seventy-five dollars in cash, and a thirty-eight inch plasma television, said to have been valued at seven thousand dollars.

9 Chillie unlocked and opened the rear ground floor door and found the Subaru on Walker Street, which must be a street that intersects with Glenmore Road. He had with him at the time the television set and he put the TV set on the rear seat of that vehicle. He returned to 440 Glenmore, proceeded upstairs, entered an upstairs study where he located six hundred dollars. He went to the bathroom, turned on the bathroom light, and was looking through the cupboards in the bathroom when one of the victims, the woman of the house, awoke and entered the bathroom. Not surprisingly, she began to scream, and again not surprisingly, the accused decamped through the rear door.

10 At 4.20am the police arrived. They saw the offender, in the front yard of the premises he had first gone to. They pursued him. Ultimately after a substantial chase he returned to the Subaru. He opened the driver’s side front door, sat in the driver’s seat, placed the key in the ignition of that vehicle and sought to start it. Police ran to the driver’s side front door and called upon him to surrender. He was placed under arrest, taken to the Waverley Police Station and charged.

Objective Criminality

11 From the facts, as he finds them to be, the sentencing judge is required to assess the objective criminality of the offences as an essential step in assessing the seriousness of the criminal behaviour of an offender. That is done by comparing objectively the criminality exhibited in the two offences before me with the criminality of offences of the same genre. It is in that way that the seriousness of the criminality of these offences can be evaluated. The objective criminality, not surprisingly, has an impact on the overall sentence to be imposed.

12 The criminal justice system places great store upon the sanctity of a person’s home. For example, police and other government authorities must seek the Court’s permission before they enter the most humble person’s abode. Any analysis of s 112 and s 113 of the Crimes Act, that is offences dealing with breaking and entering, would yield the inescapable fact that these sections focus upon the crime of breaking and entering the personal space of an occupant as one of a two-pronged aspect of the crime. In this case, the second aspect is the commission of a serious indictable offence, namely the larceny. Larceny, standing on its own, carries a maximum penalty of five years, but if you add to that the breaking and entering of personal space of a person it carries fourteen years. If you add to that the fact that the personal space that you have invaded also has the person in it, the offence carries twenty years. That is, four times what it would have carried had it been but a simply larceny. So the essence of the criminality in this offence is not just the stealing but more importantly the intrusion into the space of people and particularly the intrusion into space of people when they are present.

13 The items taken from 448 Glenmore Street included the victim’s handbag, containing her credit card, wallet and car keys. His victim was a single, sixty-one year old female. Mr Chillie’s entry into her home and, in particular, into her bedroom whilst she was asleep represents a serious invasion of her personal space, a place in which she was entitled to believe her privacy, safety and personal security were secure. She presents as a more vulnerable victim than the other two because she was alone. However, there is no evidence that the offender knew that she was alone. The value of the items taken is not given in evidence. Of real significance, however, is the importance the wallet, credit card and car keys place in the daily lives of people. Of course, it also provided this offender with the means to commit further criminal offences.

14 Whilst I am punishing for the commission of this offence only, any likelihood of the offender committing other offences that the theft of these items suggests a level of sophistication that I am entitled to take into account in assessing the objective seriousness of this offence. Again, the taking of the car keys, particularly bearing in mind that car keys these days have buttons that open the cars and thereby identify them, also suggests a level of sophistication and future planning, that is, planning particularly for an escape such as was attempted in the second offence.

15 In the second offence the theft of seven hundred and seventy-five dollars, the Subaru car keys and the thirty-eight inch plasma TV represents a greater haul than was the case at the first home. The offender’s return to the premises represents a continuation of the offence. I am satisfied he intended to use the Subaru for a quick escape, that shows sophistication of his criminal act and, as it were, planning whilst committing the acts.

S112(2) Offences and the Mid- range of Seriousness.

16 It is important to determine where these offences fall within a midrange of seriousness for offences encapsulated by s 112(2) of the Crimes Act. S 112(2) prohibits the commission of a serious indictable offence in circumstances where an offender has broken into a dwelling house.

17 A serious indictable offence is one punishable by life, or for a term of five years or more imprisonment. In this case the serious indictable offence committed is one of stealing. That is, an offence which carries a maximum of five years imprisonment. The range of offences available within s 112(2) encompasses far more serious indictable offences and can extend through to malicious wounding, sexual assaults and, in theory, up to murder. That this offence involves stealing as distinct from a more serious indictable offence sees this offence as one towards the lower end of range of offences available within s 112(2). The offence committed is one that, as it were, just qualifies as a serious indictable offence. Consequently, that fact pushes the offence towards the lower range of s 112(2) offences available to be considered for midrange of seriousness for s 112(2) offences.

18 While I am dealing with the midrange of seriousness, particularly as it impacts upon the presence of people in the premises, there is no evidence that suggests that the first victim was aware of the presence of the offender. When confronted by a victim in the second instance there was no threat or abuse, as it would seem, shouted at the victim by the offender. What appears to have happened is the offender has decamped immediately, and it would appear, no physical contact made.

19 The value of goods taken from the first break and enter is towards the lower end. The value of goods taken from the second offence is greater; a significant sum of money, and a TV set having replacement value of seven thousand. As events turned out there was no permanent loss of these goods to the owners. It would appear, and I certainly have inferred, they were all recovered upon the arrest of the offender.

20 The return to the premises of the second burglary, as I said, aggravates that offence. The offender brought considerable skill, although there is no evidence of any planning, to both of these offences. Whilst the second offence is significantly more serious it still falls well below the midrange of seriousness for offences covered by s 112(2) as evaluated on its objective criminality.

21 The attempt to take and drive offence, which is on the Form 1, was committed in circumstances where the offender was seeking to effect an escape. His original plan was that it would be used for purposes of transporting the stolen booty. It was an offence that showed scant regard for a valuable asset of the owner of the vehicle. For many, if not most people, assuming they own their own house their motor vehicle is their second most significant asset. Although he rushed to the car in order to escape I am satisfied it was always part of his plan to use that vehicle to transport the stolen TV.

Subjective Matters

22 I now turn to the subject factors. I am both entitled and required to do that. Not only am I sentencing for a criminal offence but also I am sentencing this offender for it. Each offender coming before the Court varies from other offenders who stand or who have stood for sentence. Circumstances personal to the offender may offer to the Court some explanation and insight into the commission of this offence by this offender or some reason why a more, or less, sentencing outcome is appropriate.

Relationship and family background

23 Vernon Chillie’s early history comes from an undated letter written by the late Father Ted Kennedy. He says

“I have known Vernon Chillie since he was an infant. His parents, Vernon Chillie senior, and Joy Waldon, came from Queensland where his father had been a State basketball champion. During the time that they were living in Redfern his father was convicted of killing his mother. At that time Vernon was a child of four years old. He and his sisters [there were three of them] were then virtually orphaned and Mrs Shirley Smith, a renowned aboriginal activist in Sydney, fostered them. Vernon and his siblings were thus triply deprived. Not only did they lose their mother through death and their father through incarceration but also their whole family network of relationships in Queensland. Tragically, a series of circumstances led to a loss of contact between the children and their father.”

24 It is these series of circumstances that clearly indicate a seriously deprived childhood. He is the younger of the four children. He came to Sydney, aged four, from Doomaje, an aboriginal reserve on the Gulf of Carpentaria. He left “Mum Shirl’s” care age fourteen or fifteen. He lived with an aunt for time, but also spent some time on the streets and in juvenile institutions. He made some contact with his father upon the father’s release. The father lived in the Gosford region after his release from gaol.

25 Whilst this offender was in custody on this occasion he has organised his father funeral service.

26 Aged sixteen he commenced a relationship that lasted for two years. His second relationship commenced when he was nineteen. He is still supported by his partner Vanessa. She has been to court on each occasion he has been before me.

Education, Employment History and Work Skills

27 The offender left school in Year 7, then aged fourteen. It is said he has adequate literary skills, although he claimed to have difficulty with his peers and has but a couple of friends. In his evidence he was articulate, engaging and competent. He gave a reasonable account of himself both in July and this morning.

28 He has completed short courses in carpentry and printing whilst in custody. He professed some interest in cabinetmaking and says that he would like employment in this field. That seems to be modified on this occasion to carpentry which is, in my view, a much more sensible area because there is more work available in it.

29 He has sporting skills, but frankly it is unlikely he would gain employment from any sporting skills. He has given his age as now twenty-nine. However these skills may provide him with a basis of making contact, say, with a football or basketball team on his release and give him a wider network of social contacts on release. Participation in sport at a social level may also improve his self image.

30 So far as can be discerned from appearances, he appears to be in good physical health. He is interested in sport and presents as a fit man aged - I have got twenty-eight this time, I must have worked it out at twenty-eight, is that twenty-eight right?

Mental health issues

31 He has suffered severe trauma, particularly following the violent death of his mother at the hands of his father. He has also suffered the consequential loss of his father who was incarcerated for the crime. There may still be some legacy from these issues that should occupy the attention of counsellors. His anger and aggressive behaviour in the past would seem to indicate such a position.

Drug Abuse Issues

32 Vernon Chillie commenced drinking at the age of thirteen, to a point of being intoxicated at least weekly and sometimes twice weekly. Significantly, following a conviction for a serious assault when he was about sixteen and very intoxicated, he has reduced his consumption of alcohol to an occasional basis only. The assault matter saw the offender deprived of victim compensation entitlement accruing to him from his mother's death, as his compensation award was channelled to the victim of his own assault.

33 Chillie has smoked cannabis regularly until the age of eighteen. He claims to have smoked it only occasionally since then, however the cannabis was replaced with an entrenched heroin addiction which has lasted for several years and was still ongoing at the time of his arrest. For the past four years it would seem he has been a poly-drug abuser, injecting cocaine as well as heroin and using ecstasy and ice. There was an attempt at rehabilitation in 2003 when he entered a program known as the Subutex Program.

34 Since incarceration he has become highly motivated to achieve rehabilitation. The author of the Pre-Sentence report says:

“He has indicated that he is determined to break the nexus between his abuse of drugs and his offending behaviour. Those who have seen the cycle of offending and incarceration in the past have indicated that Mr Chillie’s current attitude is very much more positive than previously and have confidence in his plan to rehabilitate himself via the Bridge Program.”

35 His drug and alcohol counsellor says in a report dated 16 June 2006 at page 4:

“He has been known to the writer since his first adult custody in 2000 and his presentation and attitude this time is considerably different. The positive comments from staff about his behaviour and secondly the lack of “in-house” charges over the past eight months I believe strongly reflects his more confident attitude and approach to change.”

36 She continues:

“It appears also that Mr Chillie’s decision to detach himself from the gaol politics and allow himself the time to appreciate his family support has resulted in a more responsible and confident young man. He did also state to the writer that he has come to realise that he does not have to follow the mob to gain respect from his peers... I believe there is more to Mr Chillie than his past record demonstrates and he is capable of moving forward if he maintains his current positive attitude.”

37 The facts tendered before the Local Court magistrate noted that he used heroin every day. (That must have been for the bail hearing.)

Past Criminal History

38 Vernon Chillie’s criminal antecedents show that he has been in trouble with the law since 1995. Early in 1995 he was before the Children’s Court for break, enter and steal, assault, stealing and resisting police. He was first before the District Court for maliciously inflict grievous bodily harm with intent, in December 1995. This is the offence of violence I earlier referred to that occurred when the offender was in his teenage years.

39 He appears to have remained out of trouble for four years thereafter. His next period of offending is towards the end of 1999 and into 2000. Again his offending included break, enter and steal and aggravated break, enter and steal. Several of these offences were dealt with in the District Court.

40 Soon after his release from prison in 2003 he was again committing aggravated break, enter and steal offences. For this last aggravated break, enter and steal he was sentenced to a total term of imprisonment of five years. The offence that I am dealing with occurred during the two and a half year parole period. The commission of offences during parole period aggravates the criminality of that offending conduct. I am satisfied his predilection for committing break, enter and steal offences is related to his ongoing drug abuse and his need for funds to support his drug addiction.

41 He told W John Taylor, well known clinical and forensic psychologist, this both in general terms and in dealing with the particular offences that I am dealing with. In order to break what is becoming a cycle of offending, imprisonment, further offending, and further imprisonment, there is a need to address the causes of his offending conduct provided that can be done without endangering the community.

42 This offender recognises that his motive for committing these offences was to obtain money so that he could purchase illegal drugs. He claimed to be heavily under the influence of cocaine and heroin at the time of the offending conduct. He told John Taylor:

“I don’t know why I keep doing it. It isn’t nice to go into people’s homes. There’s no excuse, the drugs control you.”

43 It may be from that last comment he could be thought to be seeking to avoid responsibility, however I have heard him in the witness box. He has impressed me as being willing to accept full responsibility for his criminal acts. I am fortified in this view by his early plea of guilty. Since his incarceration he appears genuinely committed to resolving his drug abuse problems consistent with a recognition of a significant factor in his criminal conduct.

44 I am satisfied he is genuinely contrite. Further, I am satisfied he is genuinely seeking rehabilitation.

45 He pleaded guilty before the Local Court. While that will impact upon any sentencing outcome it is also important in assessing his offending conduct and his prospects of rehabilitation. It is one of the factors I have taken into account in his favour in determining to impose a sentence for these offences which is capable of being suspended, subject to some serious conditions to which I will come shortly.

46 The plea of guilty not only supports his contrition but amounts to acceptance by him of responsibility for his acts. He should be entitled to a benefit for his plea of guilty. Usually that benefit is expressed as a discount, however it is not confined strictly to discounts, it can in fact impact upon the nature of the penalty imposed. The administration of criminal justice is served by guilty pleas and particularly so far as the utilitarian value of the pleas are concerned I make the following comments; court time is saved; witnesses time, legal expenses and the like are freed so that they can be devoted to other cases; a guilty plea reduces considerably, almost to the point of entirely, the likelihood of contest in an appeal on the issue of guilt in respect of the offences I am dealing with. These are important utilitarian factors insofar as the administration of criminal justice is concerned. The interests of criminal justice are also advanced through the public acknowledgment by an offender of guilt. In that sense, pleas of guilt by offenders sustain the community confidence in the administration of criminal justice by maintaining the confidence of the community in the investigation of crime and the community’s expectation that those guilty of crime will be held accountable for it.

Rehabilitation Prospects

47 This is a case in which sentences since 1995 of three years, three years, and five years, have not brought about any change in this offender’s conduct. Upon each release in the past the community has again been endangered by his predilection to break, enter and steal. In the absence of any rehabilitation the cycle of the past ten years is, it seems to me, doomed to repeat itself. Some effort to maximise rehabilitation prospects is surely called for in this case at this time. I say at this time because those who are closely connected with the supervision of the offender whilst he is in gaol seem to record a change in his motivation. Such a change is not going to last forever.

48 On the other hand, some realistic assessment of Vernon Chillie’s rehabilitation prospects is a vital step in assessing the appropriate rehabilitation path. As earlier remarked, the ultimate concern of any sentencer must be the protection of the community. While rehabilitation may advance that goal it is equally important the community’s protection must be considered whilst that rehabilitation is being achieved. This assessment is predicated upon the conditions of the s 12 bond that I intend to impose and in particular (1) that he be of good behaviour and (2) that for the first ten months or so he accept full time residential drug treatment, specifically in the Bridge Program. Were that condition to be avoided there is no way that I can see that his rehabilitation can be advanced with some modicum of safety to the community. The positive rehabilitation factors include:

• Vernon Chillie’s positive behaviour whilst in custody including contact with his drug and alcohol worker, his withdrawal from methadone, his changed attitude on this occasion and his rejection of past prison associates.

• His willingness to enter a full time rehabilitation program, and as significantly, his acceptance as a suitable candidate by the Bridge Program.

• His insight into the role drug abuse has played in his past criminal conduct.

• The strong and ongoing support by his partner and presumably his child, offering continued personal and emotional comfort to him.

• His willingness to seek support post release, including from the Ex-Inmates Program being established and conducted by John Taylor and a number of ex-inmates, and by assessments from professionals, including, it would seem, although I understand it would not be binding, by expressions of support from the Parole authorities.

49 Two documents that have been tendered lead me to a sense that the Parole Board support the path being proposed. R A Cosman, Acting Director and Secretary of the New South Wales State Parole Authority said:

“Given Mr Chillie’s contact with the drug and alcohol worker, his positive behaviour in custody, and post release plans regarding the rehabilitation program his release to parole on 24 October 2006 would appear to be a reasonable proposition, particularly if there is a favourable report from the Probation and Parole Service.”

50 There was also, although it is hearsay, but the strict rules of evidence do not apply in sentencing proceedings, (see s 4 of the Evidence Act) a further quote from Ms Debijenko is in these terms:

“I have spoken to Parole and they are going to support but will recommend a s 12 and not a s11.”

51 That is a facsimile addressed to the offender’s advocate, Mr Barber, from the drug and alcohol worker, Rhonda Dabigenko.

52 There are a number of negative indicators, including:

• He has been assessed as having a high to moderate likelihood of recidivism.

• To the extent that his past criminal conduct is a predictor of future conduct he has a history of recidivism.

• He is assessed as having poor impulse control.

• There are a number of unresolved issues arising from a traumatic childhood still plaguing him.

• There is an entrenched history of drug abuse that is to be beaten.

• There are a number of anti-social characteristics in his current personality adjustment.

53 One should understand that any personality profile such as Mr W John Taylor as undertaken is to be understood as a snapshot of how you presently are. As with any snapshot of people, they change with time, and a snapshot of personality can also change with time; more particularly with work and dedication on aspects where one seeks to reform it.

54 A rehabilitation program needs to deal with, and if possible impact positively upon, the negative indicators. Assuming Vernon Chillie is genuine in his desire to reform, and I have found him so to be, a program such as the Bridge Program, run by the Salvation Army, with drug and alcohol testing, counselling and general counselling seems a suitable vehicle that could achieve much.

Custodial History

55 This offender has been in custody since his arrest on these matters. That arrest was effected on the date of the offences, 25 October 2005. His parole has been revoked since 10 November 2005. As I have said, the Parole Board are mindful of the progress made by Chillie in the nine or ten months period of incarceration.

Overview of the Subjective Circumstances

56 There is nothing in the subjective circumstances that requires any assessment that the offender falls within the midrange of seriousness.

57 There is much in the subjective circumstances pointing towards the time being ripe to attempt to advance Vernon Chillie’s rehabilitation. That rehabilitation, as I say, may be advanced in circumstances where the risk to the community is minimised. That risk can be minimised by the imposing of appropriate conditions on the offender.

58 Any sentence that I set initially must be set without regard to whether the sentence is to be suspended or not. It is clear from the remarks that I have made thus far that I am strongly impressed by the subjective circumstances of the offender and in particular the prospect that his rehabilitation can be achieved in circumstances where hithertofore it has not been achieved. He is still young enough for rehabilitation to be an important factor in sentencing. I do not regard as an aggravating feature of his criminality, his prior record. True it is that record does not necessarily entitle him to leniency, all other things being equal. But in my view in this case they are not, because there has been this significant change so far as rehabilitation is concerned.

59 I would also give him a benefit of s 12 and while I hope it does not amount to double counting, it seems to me that the benefit can be one of both recognition of the appropriateness of a s 12 sentence and a recognition that he can be properly dealt with otherwise by a sentence of two years incarceration for both offences.

60 The Crown has advanced an argument that in the light of the past history there is a strong case for personal deterrence and there is a case for deterrence generally. He does not present any figures to me as to the difference of impact that a sentence of imprisonment suspended would have against a sentence of imprisonment of full time incarceration on the general community. Nor is it likely that the general community will have general knowledge of this offence, all things being equal. I do accept the argument that personal deterrence is important and it seems to me that the needs of personal deterrence are adequately met with this sentence, because in the event of a breach of his rehabilitation program, he will be back to full time custody. I do not intend to find special circumstances and I am motivated not to find them particularly on the basis of the need for personal deterrence.

61 I can indicate now that it is my intention, should the Parole Board grant this gentlemen parole, to impose a term of imprisonment of two years in respect of each matter, taking into account the Form 1 matter. I can indicate that it will be my intention that there will be a non-parole period of twenty months and a balance of term of four months. I do not propose to sentence him today. I do propose to refuse him bail. I propose to adjourn this matter to a date in late October pending the outcome of the Parole hearing.

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