Regina v Gregory Christopher White

[2006] NSWDC 201

CITATION:	Regina v Gregory Christopher White [2006] NSWDC 201
JUDGMENT DATE:	20 January 2006
EX TEMPORE JUDGMENT DATE:	11/26/2007
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Convicted - steal from the person (x5); Sentenced: effective non parole period of 2 and 1/2 years to date from 20th May 2005 - 19th November 2007.; /recommendations to Parole Board re attendance at full time rehabilitation program; re compelling random urine analysis for purposes of detecting illicit drugs.
CATCHWORDS:	Criminal law - sentencing - steal from person (x5) - elderly female victims - established modus operandi - recidivist offender - aged 32 - first offence whilst on parole - failure to implement stated parole plan - prior lengthy prison history - entrenched history of drug abuse - two prior periods of sexual abuse - child victim of domestic violence - early guilty plea - superficial contrition
CASES CITED:	R v Rause NSWCCA 8 August 1992
PARTIES:	Regina Gregory Christopher White
FILE NUMBER(S):	05/31/0136
SOLICITORS:	Crown: Mr B. Love, Accused: Mr A Robinson

SENTENCE

1 HIS HONOUR: Gregory Christopher White is aged thirty-two. He received his first suspended sentence of two years committed to an institution at the age of thirteen. He received his first adult prison sentence of six months aged eighteen. In the fourteen years since he has turned eighteen White has spent sixty-six per cent of his time in prison, that is to say, on my calculations eleven years and eight months of that time.

2 On 27 August 1997 he was sentenced to a minimum term of five years to expire on 21 May 2005 with an additional term of two years. It would seem he may have been released when his minimum term expired. If so, within four months he had re-offended.

3 White has pleaded guilty to five charges of steal from the person. Each offence bears a remarkable similarity. The offender targets elderly ladies. His youngest victim was fifty-nine years old, the five others were aged seventy years or more. His eldest were aged eighty-one and eighty-five.

4 All offences were committed between 3.15pm and 7pm. Each was committed, as best I can tell, in the Hamilton region near Newcastle. Generally he approached each from behind. Usually he was riding a bicycle. His victims were inevitably a pedestrian. Each of his victims was carrying a shopping bag or a handbag visible to him as he approached from behind. One held her bag under her arm. Two were holding their bag in their hands. His favourite mode would be, as he rode past, without warning grab the handbag or shopping bag, flee on the bike with the bag and its contents. Each bag contained only a modest sum of money, in total $287, but other items of value were also taken: keys, personal papers, mobile phones, spectacles, items of jewellery, a pacemaker card and items purchased from nearby stores. One of the victims valued the items of jewellery taken from her at more than $7,500.

5 The first offence was committed in September 2002. The remaining four offences were committed in a fifteen-day period in September 2004.

6 The Court’s task is to determine the appropriate penalty for each and all of these offences. The first step is to determine the facts; from the those facts the objective criminality of these offences will need to be assessed. There are matters personal to the offender that will need to be considered. His rehabilitation prospects will need to be assessed. Finally, more technical matters will need to be determined, including questions of discount for his pleas of guilty, the weight to be given to deterrence, questions of totality and, of course, the ultimate sentence to be imposed.

FACTS

7 There is little dispute about the facts disclosed by the evidence. A summary of each is to be found in exhibit A. An overview of those facts is contained in my introductory remarks. The first of the offences before the Court was committed whilst this offender was on parole for nine very similar offences, also committed in the Hamilton region. All occurred in a seventeen-day period in May 1997.

OBJECTIVE CRIMINALITY

8 From the facts as he finds them to be, the sentencing judge is required to assess the objective criminality of the offences so that the criminality of the instant offence can be compared against offences of a similar kind. It is in that way that the real seriousness of these offences can be best determined.

9 A useful starting point is to understand why the courts and community regard Gregory White’s conduct when committing these offences as criminal conduct. Gleeson C J, when Chief Justice of New South Wales, encapsulated the essence of the legal wrong done by robbers and the reason why substantial punishment is required in R v Rause, unreported, NSWCCA 8 August 1992. The Chief Justice said,

“One of the primary purposes of the system of criminal justice is to keep the peace. In this connection the idea of peace embraces the freedom of ordinary citizens to walk the streets and to go about their daily affairs without fear of physical violence. It also embraces respect for the property of others. Offences of the kind committed by the present [offender] are not trivial instances of disrespect of private property. They are serious breaches of the peace. They are direct attacks upon the security of person and property, which the law exists to protect.

It is quite likely this young man does not understand, and he may never understand, the seriousness of his anti-social behaviour. But the courts understand it. Crimes of this kind, especially when committed by an offender with a long criminal history, deserve severe punishment”.

10 Each offence before the Court then is to be regarded as a serious breach of the peace that citizens are entitled to enjoy. The criminality associated with each breach is aggravated by the fact that each of the victims was an elderly female, generally attacked from behind without warning. Elderly females aged seventy to eighty-five are rightly regarded by the law as vulnerable victims. It takes but a moment’s thought to recognise that to attack a person as vulnerable as an eighty-five-year-old woman must be an act of greater criminality than attacking someone more able to resist or pursue their attacker.

11 Likewise, an attack from behind without warning also aggravates the criminality. The targeting of an aged woman, attacking from behind whilst riding a bicycle, suggests the use of a methodology that has been proved successful to him in the past. In that sense then the attacks have been thought through and in that sense planned. While each particular attack may have been an impulsive response to finding a suitable victim, the level of planning that developed a modus operandi amounts to a feature aggravating the overall criminality.

12 The first of these offences was committed whilst the offender was on conditional liberty, namely parole. The commission of an offence by an offender in circumstances where he betrays the trust that he will be of good behaviour reposed in him by the parole board, is regarded as a feature of the offence which aggravates its objective criminality.

13 Some items taken, particularly the jewellery and personal papers, assume an importance for the victim often beyond their actual or replacement value. Margaret Mary Johnson lost her engagement diamond ring, a gold sapphire ring, a pendant she was given on her eighteenth birthday. This woman was remembering and had treasured those items, some for sixty years or more. She lost them! The sentimental value of such items are often priceless to their owners.

14 Whilst some purses were ultimately recovered, the money and jewellery was not recovered. The stealing from Zoella Farrow occurred at the front door of premises she was then in the process of entering. She was within the front yard, the screen security door was open and she was in the process of unlocking the front door when her handbag was grabbed from behind. The offender then fled on his bike. The offender’s intrusion onto the threshold of the house aggravates the criminality of that particular offence.

15 These offences were all motivated by a desire to obtain money for drugs. While I can’t be satisfied beyond reasonable doubt, it would appear a distinct possibility that this offender was released to parole in August 2004 upon a condition that he attend the Bridge Rehabilitation Program. If so, it should be noted by those who will oversight his parole on the next occasion, that greater supervision of this offender will need to be put in place.

16 I go to question and answers 135 through to 148.

“Q. All right, all right, you went back to gaol in February. How long for? A. Until 19 August.
Q. Then you were released to parole again, is that the case?
A. Yes.
Q. And when you were released to parole where did you go to?
A. I was supposed to go to rehab.
Q. Whereabouts was that?
A. The Bridge Street home.
Q139. At Surry Hills?
A. Yeah.
Q140. You were suppose to go there, where did you go?
A. Here.
Q141. What back to Newcastle?
A. Yeah.
Q142. Were you living anywhere in particular when you came back?
A. No...just parks, spots, friends’ places.
Q145. So you’ve had no fixed address since you’ve left gaol this time?
A. Yeah.
Q146. And is it the case that you’ve done more of these offences with...pushbike robberies?
A. Yeah.
Q147. Can you recall how many you’ve done?
A. No.
Q148. Do you remember any details of these offences.
A. No, I’m just going on what you tell me”.

As I say, the offences were then committed the following month.

17 The offender’s plan or modus operandi, he said, sought to exclude injuring his victims. He would target the victims he said that had “poor bag security” with a view to being able to take their bags without causing them to fall over or be injured.

18 The objective criminality exhibited by these five offences reaches a substantial level for the reasons I have given. Clearly a very substantial term of full-time imprisonment is called for.

SUBJECTIVE FEATURES

19 I have already noted the offender is thirty-two years old. He is single, he does have a ten-year-old daughter whom he has not seen since birth. He was raised believing one Stephen White was his father. He now believes Stephen White is not his father. His mother moved away from Stephen White because of significant domestic violence. Subsequently she remarried, she has two daughters, but the offender does not maintain contact with them.

EDUCATION, EMPLOYMENT AND SKILLS

20 At school White was the brunt of jokes about his size and weight. He left school aged thirteen, unable to read or to write. He attended special classes but found them of minimal benefit. He has a limited work history, some work as a painter, but otherwise no work experience outside a custodial setting. From what I can see he has no vocational skills other than those built up from his painting experience.

ALCOHOL AND DRUG ISSUES

21 Gregory White has a long-standing, deeply-entrenched history of poly-substance abuse including alcohol, amphetamines, meth amphetamines, hydrochloride and heroin. He has experimented with ecstasy, cocaine, hallucinogens and inhalants. He would binge-drink four to five times weekly and consume $200 worth of amphetamines and heroin daily. He is an injector. His use of drugs was such as to induce or contribute to his hearing voices and, most probably, depression.

22 Within the prison his substance abuse is in remission, partly through 80mg to 13mg daily dose of methadone. The discrepancy of daily doses may reflect a reduction between August and October 2005 or through the offender being a poor historian.

23 A second reason why his drug problem may be in remission is the absence of readily available drugs of choice to him within the prison system.

PSYCHOLOGICAL ISSUES

24 The offender presents with limited intellectual resources. He has been assessed by Wayne Reid, PhD, clinical neuropsychologist, as having borderline intellectual ability with memory and frontal intellectual skills commensurate with his level of intellect. I suspect that there is some level of underperforming. No doubt his memory has been abused by his continued intake of gluttonous quantities of alcohol and drugs.

25 His offences display a level of cunning and forward planning.

26 Apart from the possibility of drug-induced psychotic episodes where he has heard voices, there does not appear to be any other significant psychological pathology.

27 Peter Ashkar, a forensic psychologist, assessed him as having sub-clinical levels of depressive symptomatology. He was certainly teary when last in court at Newcastle. Dr Reid also noted he was tearful, although not reporting any significant problems of depression. He does, however, have a history of self-harm. His self-image is poor, based upon his past life history, his present and his physical attributes.

28 There are two periods of significant sexual abuse in his history. The first at the hands of a step-father between the ages of two and five. There was a second period post-puberty when he was abused by an elderly man. This second episode must have occurred as he was leaving or shortly after he left school. It may even have contributed to his leaving school, the evidence doesn’t make that clear. It would seem he is still troubled by and focused on these past instances of sexual abuse.

GENERAL PHYSICAL HEALTH

29 Gregory White carries the hepatitis C virus. He also has a history of several head injuries, several occurring in fights and once when he went through the windscreen of a motor vehicle.

ATTITUDE TO THE OFFENCE

30 The offender gave evidence, he claimed he felt “lower than a snake”, something he also told Peter Ashkar. He claimed a desire not to hurt anybody. However, I regard his expressions of contrition as superficial. He no doubt said the same thing in respect of the nine victims in 1997.

31 He claims to police he is unable to recall the episodes. In those circumstances it is difficult to accept his contrition is personalised towards his 70- or 81- or 85-year-old victims. He claims he cannot recall them.

32 He has, however, pleaded guilty as an acknowledgment of his guilt and as a demonstration of his willingness to accept responsibility for his actions. His criminal acts have impacted upon his self-image.

33 In these ways he is contrite, but I have little doubt that if released tomorrow he would be back conducting pushbike robberies as soon as he could find a pushbike appropriate for the job.

PLEA OF GUILTY

34 He pleaded guilty before the Local Court. It is an early entered plea, I have allowed a discount of twenty-five per cent for the plea based upon its utilitarian value.

CRIMINAL HISTORY

35 There is little doubt this offender could, without exaggeration, be labelled a recidivist offender. For more than twenty years now he has been before the Children’s, Local and District Courts. His offence of choice is stealing. I have already mentioned his 1997 appearance before the Court on nine almost identical stealing counts.

REHABILITATION PROSPECTS

36 This offender’s rehabilitation prospects are guarded at best estimate, and more likely to be poor. There are a number of factors for so finding:

· Entrenched drug addiction

· Prior history of offending, over twenty years, but particularly so since 1996

· Poor intellectual resources

· Poor social/family network

· Absence of employment history/skills

· Presence of antisocial personality features

· Absence of education to the point of an absence of reading or writing skills

· Poor self-image and an absence of motivation to improve himself

37 Dr Reid’s diagnosis of a long history of antisocial behaviour and antisocial personality disorder and substance abuse and numerous head injuries also contribute to my view of his poor rehabilitation prospects. Dr Reid opines,

“Given his intellectual resources, psychological problems and drug-taking behaviour, he requires long-term intensive rehabilitation in a residential facility...His chances of beating his drug habit without such support are poor”.

38 In my view he needs full-time rehabilitation at a facility that accepts dual diagnosis candidates. The Bridge Program, who is willing to accept him, is not such a program that accepts dual diagnosis candidates; although Miracle Haven, also run by the Salvation Army, is. Peter Ashkar recommends,

“Gregory requires treatment for his substance use disorders. Treatment will need to:-
(a) target the underlying reasons for substance abuse
(b) teach him to recognise and plan for times when he is most at risk of using substances and
(c) assist him with development of a relapse prevention plan that he can follow during times of high risk.
Psychological treatment involving education and counselling components is required in order to controvert a poor prognosis. Gregory requires intensive support and supervision and his initial treatment needs are best met in a structured residential rehabilitation program”.

To all this should be added that treatment and counselling will be needed long before parole.

39 This offender has issues that have needed addressing for years, including his being sexually abused on two significant occasions, his being either a primary or secondary victim of domestic violence during his earlier years, his illiteracy and of course his drug abuse. Those responsible for him during his incarceration have a responsibility to see that he emerges less damaged at the end of his incarceration than he was when sentence was pronounced.

40 On the positive side, the fact that he has some insight into the link between his drug addiction and his criminal behaviour is positive. The fact that he recognises he must undergo rehabilitation in a full-time setting, and knows that he should express a willingness to do so, is also important. His entry into a full-time rehabilitation centre should be made a condition of his parole. I certainly recommend such a proposition for the consideration of the parole board.

SETTING THE SENTENCE

41 The maximum penalty for each offence is fourteen years’ imprisonment. But for the plea of guilty I would have set an overall sentence of six years for these offences. I have discounted that figure by twenty-five per cent which I have rounded out to fourteen months, making an overall sentence in respect of each of these offences of four years and eight months. In reaching the starting figure of six years I have had regard to the totality of criminality.

DETERRENCE

42 In modern Australian society there is a very extensive raft of criminal laws passed by both the federal and the state parliaments. The chief purpose of the criminal law put in place by parliaments is to deter those who are tempted to breach the provisions of the criminal law by setting maximum sentences for each of the offences that the parliament creates. Sentencing for breaches of the criminal law requires a sentencing judge to keep in mind the general deterrence aims of the criminal law for the community at large, by keeping in mind and relating the sentence that they give to that maximum penalty.

43 There is also a specific deterrence aimed at individuals like-minded to the offender, who but for such deterrence would be willing to commit crimes similar to those for which this offender is being sentence.

44 Finally, there is a component of deterrence to be considered which is personal to the offender, with a view to deterring him or her from re-offending. I have certainly given weight to the need for personal deterrence.

45 In this case there is a particular need to fashion a sentence that gives substantial weight to personal deterrence. Fixing a starting figure of six years’ imprisonment is one way so to do. The setting of a longer than usual balance of term is another way. Although this offender in the past has returned to offending when released on parole, he has also learnt that he will be recalled to resume his sentence if he offends whilst on parole.

SPECIAL CIRCUMSTANCES

46 There are several reasons why special circumstances should be found. This sentence will be partly cumulative to the balance of parole that the offender is serving. A personal deterrence effect of longer balance of term, the prospects that part of the parole period will be taken up with full-time rehabilitation and the recognition that full-time rehabilitation is regarded as quasi-custody, and the fact that a full-time custodial sentence contains many counter-rehabilitation pressures, are all factors influencing me to fix special circumstances.

47 In setting the sentences for count one, which is an offence that occurred on 9 September 2003, I do set an overall sentence of four years and eight months when I come to making the orders. For count three, I will be setting an overall sentence of four years. For count two, I will be setting an overall sentence of three years. For count four, I will be setting an overall sentence of three years and six months. And for count five an overall sentence of three years. Mr White would you stand up please.

FORMAL ORDERS

48 Gregory Christopher White I convict you of the offence that you on 1 May 1997 at Adamstown did steal one ladies’ leather handbag containing personal items and $300, the property of Lila Kokomanovski, from her said person. For that offence I set a non-parole period of two years and six months to date from--

Am I correct that all of the time he spent in custody has been balance of parole?

LOVE: Balance of parole, according to my printout notes, from 23 October 2004 which was the date that he was arrested; that expires on 19 May 2005.

HIS HONOUR: So the two years six months non-parole period to date from the 20 May 2005 and to expire on 19 November 2007. I set a balance of term of two years and two months to expire on 19 January 2010.

49 In respect of count three, which I will read out to you, that you on 15 May stole one ladies’ leather handbag containing personal items and $10, the property of Marguerite Frances Askie, from her said person, you are convicted. For that offence I sentence you to a non-parole period of two years and three months to date from 20 May 2005 and to expire on 19 August 2007. I set a balance of term of one year and nine months to expire on 19 October 2008.

50 For the two offences that you on 14 May at the Junction stole one ladies’ leather handbag containing personal items and $200, the property of Mavis Kearton, from her person; and for the offence that you on 17 May at Hamilton in the State of New South Wales stole one ladies’ leather handbag containing personal items and $50, the property of Beryl Gill, from the person of Beryl Gill: Firstly you are convicted of each and you are sentence to a non-parole period of two years’ imprisonment to date from 20 May 2005, a and to expire on 19 May 2007.

51 I convict you of the offence that you on 9 September 2002 at Hamilton stole a plastic shopping bag

containing a purse and personal items including Medicare card and a bank card from Edith Bevan which was her property. For that offence, as I said, I have sentenced you to two years and six months to date from the 20th May 2005 and expire on 19 November 2007 and the balance of term of two years and two months to expire on 19th January 2010.

52 For the offence that you on 15 September 2004 at the Junction stole a chattel namely a handbag of $15 cash from Zoella Farrell, you are convicted and sentenced to two years and three months to date from 20th May 2005 and to expire 19 August 2007. With a balance of term of one year and nine months to expire on 19 October 2008.

53 Now let us do two and five. You are convicted of the offence that on 19 September at Hamilton 2004 you stole a chattel, namely a handbag containing $30 and personal items, from Therese Doosey, which was her property.

54 You are also convicted that on 26 September 2004 at Hamilton South you stole a shopping bag containing $100, cash and groceries from the person of Ethna Harvey. As I said, for those two offences you have been sentenced to two years’ imprisonment to date from 20th May 2005 and to expire on 19 May 2007. And a balance of term of one year to expire on 19th May 2008.

55 The final offence that I am dealing with is that you stole a chattel namely a handbag containing $10 cash and assorted jewellery from Margaret Johnson. For that offence you are given a non-parole period of two years to date from 20 May 2005 and to expire on 19 May 2007, and a balance of term of one year six months which will expire on 19 November 2008.

56 The overall effect of the sentence is that you have been sentenced to a non-parole period of two and a half years to date from 20 May 2005 and that will expire on 19 November 2007. The earliest date upon which you can be released is 19 November 2007. Whether you are released or not by the Parole Board on that date, particularly given your history, will be a matter for them. I can tell you if you do rehabilitation programs during your time in custody you are more likely to be released than if you do not.

57 I recommend to the Parole Board that it give serious consideration to requiring you, as a condition of parole, that you enter a dual diagnosis rehabilitation facility. I do not have any power to order it but I make the recommendation.

58 I also recommend that you be required to accept random urine analysis for the first eighteen months of any parole that you do. I further recommend that any breach of the conditions that I have suggested be considered a breach of your parole, meriting reconsideration of your parole by the Parole Board.

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