Regina v Benjamin Elthan

[2007] NSWDC 258

CITATION:	Regina v Benjamin Elthan [2007] NSWDC 258
HEARING DATE(S):	1/3/07
JUDGMENT DATE:	2 March 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Finnane QC DCJ
DECISION:	The non-parole period commences on 31 July 2006 and concludes on 30 November 2008. He is to be released from custody on that day and I direct that conditions on parole should require him to undertake relapse prevention programs and random urinalysis testing. And I recommend that the parole authorities consider arranging for his admission to a long term rehabilitation program. The balance of the term goes from 1 December 2008 to 28 February 2011.
CATCHWORDS:	criminal law - sentencing - break and enter - in company - aggravation - alcohol - extended parole period
LEGISLATION CITED:	s. 3A Crimes (Sentencing Procedure) Act 1999
PARTIES:	Regina Benjamin Elthan
FILE NUMBER(S):	06/61/0089
COUNSEL:	Offender: Mr R Button S.C.
SOLICITORS:	DPP: Ms F Lalic Offender: Mr P Ringbauer

SENTENCE

1 HIS HONOUR: The offender, Benjamin Elthan, pleaded guilty before his Honour Judge Nield on 20 February 2007 to a single offence of breaking and entering and committing a serious indictable offence, namely stealing three cartons of Jim Beam and Cola in circumstances of aggravation, namely that he was in company of two other persons who are both juveniles. He has also asked that I take into account on a Form 1, an offence of taking and driving a conveyance without the consent of the owner and entering a dwelling with intent to commit a serious indictable offence and I take those matters into account.

2 The facts were that the offender, who at the time was on parole, was drinking with two juveniles and other persons in the village of Woodstock which apparently is near Cowra. They became intoxicated. They ran out of alcohol and were desperate to obtain more. They could not get any more at Woodstock; they needed to get to Cowra to get more and they could not persuade anyone to drive them to Cowra for the purpose of buying more alcohol. At about 2.30 in the morning the offender entered a garage at 41 Noyeau Street, Woodstock, and started and drove away a motor vehicle belonging to a Julie-Anne Sigsworth. The two juveniles joined him. As is often the case in country areas, the householder believed her car was safe and left the keys in it. The three then drove to Cowra and to a store known as the Cellarbrations Liquor Store. At about 3.25am the offender reversed the vehicle into the front doors knocking them off the frame and the car then went into the store itself. It became jammed between two concrete bollards at the front of the store.

3 One of the juveniles jumped over the vehicle into the store and grabbed three cartons of Jim Beam and Cola which he slid over the roof of the vehicle to the other offenders. All three then went to a nearby park where they hid the three cartons under a bandstand. They then left the park.

4 Police attended the scene, viewed closed circuit television footage of the break in. This enabled them to identify the offenders and at about twenty to five in the morning all three were arrested in central Cowra. The juveniles when confronted with arrest, made full admissions, the offender did not.

5 He pleaded guilty on indictment on the first day of the hearing before Judge Nield and the matter was remanded for sentence and I have come to sentence him.

6 The offender gave evidence before me and said that he had been committed from Cowra where he was represented by a private solicitor. About two weeks before the trial he indicated, having spoken to his current counsel and solicitor, that he was prepared to plead guilty. That in fact was the first time he had had any real opportunity to speak to a lawyer. The person who represented him at Cowra apparently did not speak to him.

7 The offender was born on 14 June 1980; he is thus 26 years old. He first came before courts in 1997 when he was 17 years old. His first offences were dishonesty offences and from that time until 1999 he appeared frequently in Local Courts in Dubbo and Bathurst for summary offences involving driving motor vehicles for which he has never had a licence, stealing, stealing motor cars, breaching bail and a few minor assault charges.

8 Until 8 November 1999 he was not sent to gaol; he was put on recognisance. It says here he was given fines, all sorts of things were done but eventually he was dealt with before Local Court for breaking and entering and stealing on 8 November 1999 and given a minimum of three months with an additional term of six months on a series of break and enters. All of these sentences were made concurrent.

9 From that time on he has been in and out of gaol for short sentences for such things as driving whilst disqualified, stealing motor vehicles, self administering drugs, stealing and driving under the influence and offences of a like type. He has also been dealt with in the Goulburn area and the Wagga area so he has not confined break and enters and stealing and the like merely to Bathurst or Dubbo.

10 It can be said that his criminal record is a depressing one as page after page follows with conviction after conviction and sentence of imprisonment after sentence of imprisonment. At various times Magistrates in Local Courts obviously attempted to impose bonds on him with supervision to see if something could be done. He was even given the benefit of a large number of s 10 bonds in 2001. However, none of this seemed to matter because he kept going back to what he was doing. In 2001 he was back into break and entering a building and driving whilst disqualified and he got sentences of imprisonment. He was dealt for twice in that year for those sorts of offences.

11 In 2002 he came before a Local Court for stealing quite a large sum of money, he was given a suspended sentence and a fine. In 2002 he came before the Cowra Local Court for breaking and entering a building and stealing and was given and eighteen months suspended sentence with supervision by the Probation and Parole Service who were directed to give him drug and alcohol counselling.

12 In 2003 he got twelve months’ imprisonment for being carried in a conveyance without consent. Later in 2003 he came before the District Court in Bathurst and was given a three years sentence of imprisonment with a non-parole period of eighteen months. If anything should have caused him to wake up, it should have been that. By this stage he was moving into offences that were being prosecuted in this Court rather than in the Local Court.

13 However, he continued doing what he was doing and in 2004 he came before the District Court at Wagga Wagga for breaking and entering a building and stealing and got three years with an eighteen month non-parole period - sorry that is with a one year non-parole period and another one year sentence for taking and driving a conveyance without the consent of the owner. In 2004 he came before the Newcastle District Court for larceny for which he got six months imprisonment, for breaking and entering a building for which he got two years and three months with a non-parole period of twelve months. And the two year three months was to conclude on 26 October 2006 and he was accordingly on that parole when he committed this offence which is yet again a break and entering only this time one done with considerable violence using a motor vehicle to smash in a liquor store.

14 There can be no doubt that the reason for this incredible catalogue of offences arises from his having a dependence on alcohol. He had a sad life, I accept that and I have read or I have heard him give evidence to that effect. He grew up in a house or not really a house, a series of hotels with his mother. He would, as a child, have breakfast drinking beer with his food. It was plain his mother was an alcoholic and eventually when he was 12 or 13 he was placed in a foster home which was in fact a family group home in Orange.

15 For the first time in his life he had somewhere proper to live, he joined the scouts and he felt reasonably content. However, the government cut the funding for the place and everyone there was forced to leave. He then went off to Dubbo and became introduced to cannabis and amphetamines and alcohol and ever since that time he has been involved in an adverse way with the criminal law.

16 His explanation for the offences on this night were that he had run out of grog, he does not blame the juveniles and he acknowledges somebody could have been injured or killed if they had been in the store. I would accept it was not his intention to injure or kill anyone and he did not really think about the consequences of what he was doing. Those consequences included severely damaging a motorcar that he stole from someone who no doubt needed it for work purposes and other purposes, damaging the premises of a bottle shop and then depriving the owner of three cartons of alcohol.

17 It has been put to me and I would accept that the three involved in this could have removed all the alcohol from the shop. Had they been minded to so do, they could have stolen money and other valuable items in the store. They did not do that. Their only interest was getting these three crates of bourbon.

18 I read a pre-sentence report which makes it plain that his real problem is alcohol. To a lesser extent he has had some experience of using illegal drugs but he has told me and I would accept that his real problem is alcohol. The Probation and Parole Service considered that he had scant regard for authority and the effect his offending had on other people. They acknowledge he had poor role models in his life and they suggested I should specify attendance at relapse prevention programs and random urinalysis testing and that he should also be admitted to a long term residential rehabilitation program when admitted to parole.

19 Jodie Lee Bryant, a young woman of 18 who is studying childcare at her TAFE, gave evidence that she had met him in 2005 and visits him and will continue to support him. She said that he is nice when he is sober.

20 The two juveniles were dealt with in a way that seemed to the learned Children’s Court Magistrate to be appropriate, having regard to the fact that they had no real records of anything and they were not sent into any form of custody.

21 His counsel, Mr Button SC, submitted I should give him a head sentence of three years and one day with a non-parole period of eighteen months. He is currently in custody, his parole having been revoked. It was put to me if I imposed three years and one day, it would be up to the parole authorities as to whether he would be released. I could not direct he be released because it is one day longer than three years and that would impose on him real incentives to do something positive while he was in gaol otherwise they would not necessarily release him. It was put to me by Mr Button that the fact that he has been dealt with on a number of previous occasions in the District Court for offences of a similar nature, breaking and entering buildings and given sentences of three years, two years and the like, does not mean he should get exactly the same type of sentence today.

22 I certainly agree there is no principle that if a person keeps committing a similar offence there is an automatic increase of the sentence each time that a similar offence is committed. Nothing is automatic and I must take into account all the relevant facts. I must take into account, as I am sure every other judicial officer did, the fact of his very sad childhood. It is undoubtedly a fact that if people are brought up by parents who abandon them and expose them to alcohol from an early age, the chances of them getting involved in offences is very high.

23 The Bureau of Criminal Research and Statistics - I think that is what it is called - recently published a survey which is a scientific survey which indicated that if people are going into the Children’s Court system when they are young, they quite often will continue on and be major players in the adult criminal justice system. He seems to fit into that category.

24 His big problem is alcohol. Every single offence is in some way connected with alcohol or drugs but over the years the offending is gradually getting more serious. Breaking and entering a building is a serious enough matter but smashing your way into the building with a car is more serious than it. It is actually, in reality, an act of considerable violence. And doing it with two juveniles in it who may well have been injured in the impact also shows to my mind a degree of utter irresponsibility. No doubt at the time he was not thinking about this because his mind was focussed only on one thing and that is to get more alcohol and his mind was focussed on that because he is an alcoholic.

25 I have already said I doubt that he particularly took any note of the deprivation that the householder suffered when her car was removed from her garage. The last thing in his mind was that she would be upset by this. He did not consider in any way that not only could it be extremely inconvenient but getting it fixed when he smashed it could be very expensive and time consuming and she could be deprived of her vehicle for a lengthy time. The place she is living is some distance from Cowra; obviously without a motor vehicle anybody wanting to go to Cowra could be in a very awkward situation.

26 He could not get to Cowra himself easily because he had no car.

27 The prosecutor referred me to s 3A of the Crimes (Sentencing Procedure) Act. That lays down the purposes for which a court may impose a sentence and they are to ensure the offender is adequately punished to prevent crime by deterring the offender and other persons from committing similar offences, to protect the community from the offender, to promote the rehabilitation of the offender, to make the offender accountable for his actions, to denounce the conduct of the offender, to recognise the harm done to the victim of the crime and the community. I must take into account all those matters.

28 I am unable to agree with Mr Button that I should take the course he suggests. I think it would be utterly inappropriate to take such a course. I accept that the offender has some half-formed view - I can only put it as high as that - to do something about his alcohol problems but that really in itself is not a proper basis for me to impose a sentence which does not recognise the fact that this crime is more serious than any of the previous ones he has committed. He has to get a sentence that recognises that fact and he has to be aware of the fact that it is only his actions that have put him in this position. And as the years go on, if he keeps coming back, inevitably the offences will get more serious and the sentences will get heavier.

29 It seems to me the appropriate sentencing level leaving aside discounts, would be a non-parole period of three years and a head sentence of six years. The difference between those two would realise, would take into account the special circumstances that I find, namely that there is some hope he would be prepared to undergo alcohol rehabilitation and he should be given some considerable time on parole to enable that to be done.

30 I have indicated in the course of argument that I would allow him a discount of twenty percent for his plea at trial. That takes into account the fact that some weeks before the trial he had indicated his preparedness to do this and that may well be a consequence that he is not getting proper advice that he had not pleaded guilty before the Magistrate. Nevertheless, the Court of Criminal Appeal has made it plain that the maximum discount of twenty-five percent should only be given to people who plead guilty at the first opportunity.

31 I have decided to give him twenty percent because I think at least he did acknowledge his guilt before the hearing, some considerable public cost has been saved by his doing that and I think he has some genuineness in saying that he wants to do something about rehabilitation. Applying that twenty percent discount and taking off odd portions of months in his favour, that would be then a non-parole period of two years and five months with a total sentence of five years and seven months - I think that is right. No, four years and seven months, not five years and seven months. Now that is greater than his counsel sought that I should impose upon him. I think it takes into account all the factors the prosecutor has raised with me and takes into account all the factors that I think are important to take into account. I have told him already it would be a tragedy if he keeps coming back and that if he keeps coming back he will inevitably become an institutionalised man.

32 He strikes me as someone who, on the whole is fairly mild in his temperament and I would have thought he would be a candidate for classification to a lesser form of incarceration than maximum security. He has told me that he is in protection for his own safety and no doubt that would be a matter the authorities would have to take into account.

33 The sentence is going to date from 31 July 2006, that is the date on which he was arrested. His parole was revoked and I think it appropriate his sentence should date from the time he was arrested. I have taken that parole into account in any event.

34 Now I just ask both lawyers to tell me if I am correctly calculating this.

35 RINGBAUER: Your Honour, on my calculations twenty percent from three years comes to two years, 4.8 months and twenty percent off six years comes to 4 years 9.6 months.

36 HIS HONOUR: Four years, two years, eight months you say?

37 RINGBAUER: Two years, 4.8 months so just over two years and four months.

38 HIS HONOUR: Well I calculated it as two years and 5.2 months. So I was going to make it two years and five months. And I calculate the other as four years and 7.6 months and I was going to make it four--

39 RINGBAUER: It should be roughly twice the amount. If it was two years five months it should go to then four years and ten months but if - one of the numbers would be out your Honour. I calculate it as 36 months for three years, 8/10 of 36 I calculate as 28.8 which is two years and 4.8 months.

40 HIS HONOUR: My calculation is 29.2. Anyhow, I propose to give him two years and five months and a head sentence of four years and seven months. If I am wrong, no doubt someone will tell me. I have indicated the basis on which I have done it. That would go I think from 31 July ’06 to 30 December ’06 if it’s two years and five months is that right? And then from 31 December ’06 to 30 July ’11.

41 RINGBAUER: ’08 your Honour.

42 HIS HONOUR: Sorry, sorry. 30 - sorry what do you mean ’08? Four years from 30 July ’06. It would be

43 30 December ’08 for the non-parole period, that’s right.

44 Because 31 July ’06 for four years is 31 July ‘010 isn’t it?

45 RINGBAUER: The four years is, yes your Honour.

46 HIS HONOUR: And then you put seven months on that.

47 RINGBAUER: That brings you to the end of February, your Honour.

48 HIS HONOUR: February?

49 RINGBAUER: So it would be the 28th--

50 HIS HONOUR: 28 February 2011, is that right?

51 RINGBAUER: Yes, on my calculations.

52 HIS HONOUR: Now you think that it should be two years and four months rather than two years and five months?

53 RINGBAUER: Yes, your Honour.

54 HIS HONOUR: Well we could do that. That would be

55 30 November 2008 would it not?

56 LALIC: Yes.

57 RINGBAUER: Yes, your Honour.

58 HIS HONOUR: I don’t propose to change the head sentence, I think four years and seven months is actually less than what you calculated, Mr Ringbauer.

59 RINGBAUER: Yes your Honour, yes.

60 HIS HONOUR: I sentence the offender as follows.

61 The non-parole period commences on 31 July 2006 and concludes on 30 November 2008. He is to be released from custody on that day and I direct that conditions on parole should require him to undertake relapse prevention programs and random urinalysis testing. And I recommend that the parole authorities consider arranging for his admission to a long term rehabilitation program. The balance of the term goes from 31 November 2008 to 28 February 2011 - sorry 1 December. The balance of the term goes from 1 December 2008, there not being any such date as 31 November, to 28 February 2011.

62 I recommend that during his period in prison he be placed if suitable on programs dealing with drug and alcohol matters. I recommend that consideration be given to reclassifying him to a lower than maximum security classification as soon as possible.

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