Regina v Barry James Vale

[2007] NSWDC 357

CITATION:	Regina v Barry James Vale [2007] NSWDC 357
JUDGMENT DATE:	5 October 2007
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ at 1
DECISION:	Sentence of imprisonment of 2 years with a non-parole period of 10 months and 24 days. Immediate release to supervised parole.
CATCHWORDS:	Criminal law - Sentence - Break and enter and commit serious indictable offence - Young offender - Relevance of prison for an 18 year old - Assistance to authorities
LEGISLATION CITED:	s112(2) Crimes Act 1900 s23 Crimes (Sentencing Procedure) Act
PARTIES:	Regina Barry James Vale
FILE NUMBER(S):	07/51/0041
SOLICITORS:	Ms Mudge for the NSW DPP Mr Falcomata for the offender

SENTENCE

1. Barry James Vale is a young man with a bad criminal record. He comes before me for sentencing for a serious crime. He turned nineteen earlier this year. He is still in custody bail refused in respect of the offence for which I am sentencing him. Because he committed the offence a few months after he turned eighteen he is in adult prison. The question for me in sentencing Mr Vale is whether I should impose a sentence which requires him to remain in custody for longer than today.

2. The charge which he faces is an offence under s112 (2) of the Crimes Act 1900 . The charge - to which he has pleaded guilty - is that on 12 November 2006 at Armidale he broke and entered a dwelling house occupied by Raymond Noon. He did this whilst he was in company with a man named Byron Kelly. Part of the offence is that once they broke and entered the house they committed a serious indictable offence. The indictable offence committed by Mr Kelly was more serious because he assaulted Mr Noon. The indictable offence committed by Mr Vale was larceny. This offence is an aggravated break and enter because it was committed in company.

3. It carries a maximum of twenty years imprisonment. Parliament has also fixed a five year standard non parole period in respect of this offence.

4. Briefly this is what happened. Mr Vale was drinking with friends. One of the friends was playing the poker machines. He had extraordinary luck and won $6,000. This was paid to him in the form of a cheque for $4,000 plus $2,000 in cash. After buying everyone drinks the man went back home with his friends including Mr Vale. Celebrations continued. The man who had won the money was Raymond Noon. After the celebrations Mr Vale left Mr Noon’s house but before he left he saw where Mr Noon had hidden the remainder of his cash which at that stage had been reduced to some $1,800.

5. After Mr Vale left he ran into Byron Kelly. He and Mr Kelly decided to return to Mr Noon’s house and steal the money. This is exactly what they did. Mr Vale broke and entered the house along with Mr Kelly. Mr Vale showed Mr Kelly where the money was hidden and then Mr Vale left and waited outside down the street. In the meantime back in the house things became more dangerous for Mr Noon. He woke up. Mr Kelly assaulted him and left with the money. He met up with Mr Vale in the street but when Mr Vale asked for his share Mr Kelly assaulted Mr Vale as well and left without providing any money.

6. In assessing the objective gravity of this offence I bear in mind that Parliament regards it, as I said, as so serious that it has affixed a maximum of twenty years imprisonment. That is because it is an aggravated version of this offence. Once again it has also attached as I said a five year non-parole period. The non-parole period in this case remains as a reference point because Mr Vale has pleaded guilty.

7. The offence was aggravated by the fact that it was planned to some extent. I think planned is a better expression than organised. It was an opportunistic offence in terms of perhaps hours rather than minutes. Nevertheless it was planned.

8. Another feature which is aggravating is that Mr Kelly and Mr Vale broke into the house when it was likely that it was occupied by other people.

9. Mr Falcomata who appears for Mr Vale submits that the objective gravity of this particular offence, so far as his client’s participation is concerned, is at the lower end of the scale. I accept that submission. The reason that I accept that submission is that the indictable offence which was committed by Mr Vale was larceny rather than assault. The contrast is seen when one compares the gravity of Mr Vale’s offence with Mr Kelly’s offence. The other reason for accepting the submission is that Mr Vale left the premises as soon as he had completed his task of pointing out where the money was.

10. Turning to Mr Vale’s subjective circumstances I should start by setting out a brief chronology of relevant dates. He was born on 24 April 1988 so that he is presently nineteen. On 4 April 2006 a son was born to him and his partner. On 24 April 2006, just three weeks later, Mr Vale himself became an adult. This offence was committed about six months later as an adult on 12 November 2006. He was arrested on the same day but denied committing the offence. Nevertheless he was kept in custody. A few months later on 8 February 2007 he was interviewed again by the police and admitted his participation in the offence. Not only did he admit his participation but he indicated that he was prepared to give evidence against his co-offender whom he nominated.

11. Turning to factors which are personal to Mr Vale I make the following observations. He gains no credit at all from his criminal record. As I said at the commencement of these reasons he has a bad record. In fact it seems to me that he started to commit offences from the age of about thirteen. His offences include assaults including at least one maliciously inflict grievous bodily harm, larceny and robbery. Most of these, indeed all of these offences were dealt with by various children’s courts. This is the first offence committed by Mr Vale as an adult and the first time that he will be sentenced as an adult. His record indicates a need for me to give particular weight to what the law calls particular deterrence or specific deterrence. In other words Mr Vale has been assaulting people and stealing things for some years now. It is my responsibility, in sentencing him, to bear in mind the need to stop him from committing further offences or at least to deter him from committing further offences.

12. Other factors which are personal to Mr Vale include these. This is his first time in adult prison. Because of the assistance which he has indicated that he is prepared to offer he is serving his sentence in strict protection. He has been in strict protection for some five of the eleven months that he has been in custody. He has already been threatened. The threats include a threat of stabbing. He says he has received a direct threat from Mr Kelly and indirect threats from others. He has been assaulted for his cigarettes.

13. A pre sentence report has been prepared in respect of Mr Vale. It notes that he was affected by alcohol at the time of this particular offence. Indeed it records that he was a regular cannabis user from the age of sixteen. It records that Mr Vale himself regards his alcohol consumption as problematic. It expresses the view that he appears to be easily led in to making foolish choices and not deterred from re-offending despite community supervision orders. He has in the past, I note from his record, had the benefit of community service orders.

14. In his favour he comes from a stable family background and enjoys family support and encouragement so far as making positive choices and employment.

15. I have read an affidavit by Greig Stier from the New South Wales police. It notes that Mr Vale nominated his co-offender Mr Kelly to the police and provided them, that is the police, with a handwritten signed statement as well as an undertaking to give evidence against Mr Kelly. It is noted by the police that Mr Vale has made a material contribution to the prosecution of Mr Kelly. It said that the police investigating this particular offence were otherwise unaware of the involvement of Mr Kelly. It acknowledges that there is a risk to his safety being in corrective services custody with Mr Kelly. Mr Falcomata has drawn my attention to the significance of this assistance under s 23 of the Crimes (Sentence Procedure) Act 1999 . I think it has significant weight. The police obviously regard it as significant and useful. They were able to arrest Mr Kelly whom they did not realise was involved in this particular offence. The assistance was given in a relatively timely way, a couple of months after Mr Vale was arrested. He has promised to give evidence in court. He is in harsher custodial conditions as a result of his assistance and indeed has been on the receiving end of threats and assaults. I take these matters into account.

16. He has pleaded guilty at what is agreed by Ms Mudge, who appears for the prosecution, to be the earliest available opportunity. He has expressed remorse in the witness box before me. That is also indicated by his early plea and his practical assistance to the police.

17. His prospects of rehabilitation are reasonably good. I say reasonably good rather than good because he has had opportunities in the past which he has not taken. But I say reasonably good rather than guarded or poor because on his evidence and the evidence of his own mother who was called as a witness before me and on whose evidence I place some significance, the birth of his own son has made a difference to him and his maturity. Despite the fact that he committed this offences after the birth of his own son the realisation that he is deprived of the opportunity of seeing his son who must visit him in gaol if it is going to happen has brought about some change in him which his mother has observed. Hence the other reasons that I consider his prospects of rehabilitating himself reasonably good are: his strong family connections; he will be returning to live at home with his parents; his relationship with the mother of his son; and the fact that he has a job which is available to him in his father’s business.

18. I also have taken into account the principles enunciated by the authorities which are known by the reference to the case called Fernando . He is clearly regarded as a reliable and hardworking person. A reference from a person involved in Jobs Australia for whom he worked on a community service order testifies to that.

19. Mr Falcomata submitted that I might consider a non custodial option such as a suspended sentence. I do not regard that as an appropriate option. Because of his poor record and the need for specific deterrence and because of the seriousness of this offence I regard a custodial sentence as necessary. I also accept Ms Mudge’s submission that he does not appear to have learnt lessons in the past. It is for that reason that I do not regard the option of suspending this sentence as appropriate.

20. I therefore propose to sentence him to a period of full time custody and as I said at the beginning of these remarks the question for me is how much longer he should spend, if any time, in custody. I would regard a penalty for an offence such as this in the region of five years as a head sentence as not inappropriate. I would however discount that in this case by a factor of some 25% because Mr Vale has pleaded guilty. Because of his significant assistance to the authorities, involving the risks that he has put himself at, I discount that by a further 25% so that I reach a figure of around two and half years as a head sentence.

21. Taking into account at this stage other subjective factors such as his remorse and prospects of rehabilitation I regard a head sentence of two years as the appropriate sentence to impose in this particular case. As for a non parole period I accept Mr Falcomata’s submission that this is an appropriate case for the parole period to be greater than the statutory ratio. I think there are special circumstances which justify this. The main one is that this is his first time in adult custody. A second reason is that there is a demonstrated need for supervision and assistance with drug and alcohol problems which he has had from an early age. For that reason I propose to exercise my discretion and to alter the ratio.

22. As I indicated to the legal representatives before I embarked upon these remarks on sentence I originally had in mind an overall sentence of two and a half years with a non parole period of fifteen months. That was on the understanding that I could give a direction that Mr Vale would be able to serve the remainder of his non parole period in a juvenile detention centre. However, Ms Mudge has correctly drawn my attention to the fact that because this offence was committed by Mr Vale as an adult I have no power to give that direction. It follows that the custody which he has to serve will have to be continued to be served in an adult facility. I regard this as a significant factor. It affects the exercise of my discretion on special circumstances in that I give greater weight to the question of this being his first time in custody. Not only that but so far as the overall sentence is concerned I give greater weight to the consequences of his assistance which he has given to the authorities. In adult prison he has experienced threats and assaults. I propose to fix a sentence the non-parole period for which will expire today.

Now I have said that. Is there any problem or can I go ahead?
MUDGE: Can’t foresee any problem. Just in relation to the issue of bail there was some error in paperwork in relation to there was another backup matter in relation to this particular matter which remained in the local court and he has been unconditional bail - has been granted for him in relation to that however it’s not in the records in the registry and that’s where the error’s occurred and is being corrected now. So it’s anticipated he’ll be released once that error’s been corrected.

FALCOMATA: Yes that’s my understanding your Honour.

HIS HONOUR: All right thank you. Would you stand up Mr Vale?
23. For the offence of aggravated breaking and enter and committing a serious indictable offence I sentence you to imprisonment to a total term of two years. The sentence is to commence on 12 November 2006. I set a non-parole period for the sentence of ten months and twenty-four days commencing 12 November 2006 and expiring today 5 October 2007. The balance of the term will be one year one month and seven days commencing tomorrow 6 October 2007 and expiring on 11 November 2008.

24. I am satisfied for the reasons that I gave in my remarks on sentence that there are special circumstances for the balance of the term of your sentence exceeding one third of the non-parole period for the sentence.

25. Under s50(1) of the Crimes (Sentencing Procedure) Act 1999 I make an order directing your release on parole today.

26. I make it a condition or your parole that you be subject to the supervision of the Probation and Parole Service and that you accept their reasonable directions concerning drug and alcohol counselling. It will be a further condition of your parole that you notify the Probation and Parole Service of any change of your residential address.
Now anything else?
MUDGE: I would ask that he report as soon as practicable either today if he’s not released earlier enough today by 11 o’clock tomorrow to the Armidale Probation and Parole Service.

HIS HONOUR: Tomorrow is Saturday. Monday?

MUDGE: By Monday, yes.
27. I further direct that you report to the Armidale office of the Probation and Parole Service by close of business on Monday 8 October 2007.
Anything else?
MUDGE: No I think that covers it your Honour. Just an issue’s been raised in regards to him entering into bail—

HIS HONOUR: That doesn’t concern me does it?

MUDGE: It’s another matter.

HIS HONOUR: Mr Falcomata anything else?

FALCOMATA: No your Honour.

28. Now Mr Vale you’re lucky in a way: unlucky and lucky. This is the first time you’ve got into trouble as an adult and I hope it’s the last time. You don’t have a good record and it’s time that you made a change. You’ve got your own son now and from what you told me in the witness box and from what your mother said it seems as though that’s made a big impression on you. You don’t want him having you as a role model but he can have you as a role from here on as somebody completely different to what you were before. Now I was going to keep you in gaol for another four months because of the seriousness of what you did but because you’re in adult prison for the first time I think that’s a very significant factor for a nineteen year old and that’s why I am releasing you today. In a sense you’re lucky because I thought that you should stay in for longer but I’m not prepared to keep you in adult prison beyond today. Do you understand that?

OFFENDER: Yes your Honour.

HIS HONOUR: All right. You can be taken away and processed. Thanks Mr Falcomata.

FALCOMATA: Thank you your Honour.

oOo