Wiseman, Maxwell Leslie Thomas v The Queen
[2009] NSWDC 439
•23 June 2009
CITATION: WISEMAN, Maxwell Leslie Thomas v R [2009] NSWDC 439
JUDGMENT DATE:
23 June 2009JURISDICTION: District Court of New South Wales JUDGMENT OF: Cogswell SC DCJ DECISION: Under s 20(2) of the Crimes (Appeal and Review) Act 2001 I set aside the sentence of the learned Magistrate. Under s 9 of the Crimes (Sentencing Procedure) Act 1999 I make an order directing Mr Wiseman to enter into a good behaviour bond for three years. CATCHWORDS: CRIMINAL LAW - sentence appeal - break and enter with intent - convicted after hearing - criminal record - pre-sentence report - report from Benelong's Haven Family Rehabilitation Centre - history of drug addiction - unsuitable for community service and ineligible for periodic detention - lengthy criminal record - has spent 6 months in residential rehabilitation LEGISLATION CITED: Crimes Act 1900 s 113(1)
Crimes (Appeal and Review) Act 2001 s 20
Crimes (Sentencing Procedure) Act 1999 s 9, s 11, s 12PARTIES: Regina
Maxwell Leslie Thomas WisemanFILE NUMBER(S): 2008/12/1935 SOLICITORS: Ms Graham for the Director of Public Prosecutions
Ms Skinner for Mr Wiseman
JUDGMENT
1. This is a refreshing case for a judge to deal with because it involves an offender who is making genuine efforts to overcome significant personal problems which have led him into trouble with the law over many years.
2. The case that I am hearing is an appeal. It is an appeal from a sentence imposed by a Magistrate. The Magistrate imposed a gaol term and Mr Wiseman, who is the appellant, asks me to set aside the gaol term and to impose a sentence which does not involve full-time custody.
3. Mr Wiseman was charged with an offence called break and enter with intent. That is a crime under s 113(1) of the Crimes Act 1900. Mr Wiseman committed the crime on 21 January, 2007 at Dubbo.
4. Briefly this is what happened. Mr Kevin James lived in a house in Crick Street, Dubbo. He was over the road talking to a neighbour when the neighbour said that they saw someone go into his house. Mr James went across the road and saw a woman standing in front of the house. She ran away when she saw Mr James. Mr James went onto the veranda of his house and saw that a door was open leading from the veranda into the house. At that time he saw a man walking from inside through the door onto the veranda. The man tried to push past Mr James saying that he was looking for his girlfriend. Mr James hit the man on the back of his head causing the man to lose balance. He then left Mr James house.
5. The person I have described as the man who was intruding into the house was Mr Wiseman. He took nothing from the house. At the time that he broke in, Mr James’s wife and nine year old son were inside. In fact Mrs James was helping her nine year old son get dressed when she heard the commotion on the veranda and she got there to see Mr Wiseman getting up from the floor. She described him as looking drunk.
6. Mr Wiseman was later arrested and charged with this offence. He pleaded not guilty in the Local Court at Dubbo but was convicted after a hearing on 5 September 2008 before Magistrate Hamilton. On 22 October, 2008 the Magistrate sentenced Mr Wiseman to two years imprisonment to be served full-time and specified a non parole period of eighteen months. Mr Wiseman has accepted the finding of guilt and the conviction and appeals to me from the sentence which was imposed.
7. It is important to record some information about Mr Wiseman’s own background. There is a helpful pre-sentence report from a Probation and Parole officer dated 17 October, 2008. It notes that Mr Wiseman has been known to the Probation and Parole Service for about twenty years.
8. He had a disruptive childhood with an alcoholic father and outbursts of violence. He started using drugs before he became a teenager. From exhibit C, which is a report from a rehabilitation centre, it is apparent that he started using alcohol when he was aged fourteen; marijuana when he was aged ten; amphetamines when he was aged sixteen and heroin when he was aged twenty-one.
9. His younger brother passed away aged twenty-two from a drug overdose and Mr Wiseman felt that loss intensely. The probation officer noted that Mr Wiseman had grown tired of the drug scene and was wanting to rehabilitate himself from his drug addiction. It noted that he had entered into the methadone treatment program.
10. He has never had full time employment and was at the time of the report in receipt of a Commonwealth benefit but had completed the Pathways to Employment education and training program. The report noted that he was addicted to heroin and cannabis and under their influence at the time that he committed this offence. Drug abuse was the primary motivation for the crimes which he had committed. His partner was also addicted to drugs.
11. Evidently he had been involved in the methadone program since August, 2007 in an effort to break his addiction. Between August, 2007 and when the report was prepared, the probation officer noted that a report from the clinic said that despite some early behavioural issues his contractual compliance was much improved and random urine results showed decreasing substance abuse although he was not accessing case management. It recommended - that is the probation report - a medium level of intervention by that service with a focus on continuing participation in the methadone program and grief counselling. It noted that he was unsuitable for a community service order and ineligible for a periodic detention order.
12. I have made reference to his familiarity with the Probation and Parole Service. Mr Wiseman has a reasonably lengthy criminal record. He is now aged thirty-eight and has been committing offences since before he was an adult. The offences included breaking and entering and trespassing. He has received gaol terms before, including for a previous break and enter and steal, but that was in 1990. In 2004 he was sentenced to six months imprisonment for entering a dwelling with intent, which is the same or a similar offence as the one which I am dealing with now. He has had the benefit over the years of a number of bonds under s 9 of the Crimes (Sentencing Procedure) Act 1999 and there is no evidence of any breaches of those bonds.
13. The document I referred to briefly before is a report from a rehabilitation centre. It was a report from the Benelong’s Haven Family Rehabilitation Centre. There are in fact three reports from that centre dated 30 January 2009, 29 April 2009 and 18 June 2009. Each of them shows that the drug tests administered to Mr Wiseman were all negative apart from methadone which he is being treated with. He entered Benelong’s Haven on about 27 November 2008. After he was sentenced by the Magistrate he commenced serving his full time gaol sentence. He was successful in obtaining bail from the District Court on 24 November 2008 so he served just over a month in full time imprisonment. Since entering Benelong’s Haven on about 27 November 2008 he has stayed there until a few days ago. That is a residential rehabilitation centre where it is, I infer, a condition of residence that he remain at the centre except when given permission to leave.
14. That is important to note because he has spent over six months in that centre in circumstances which, although not the same as full time custody, does involve a period of custody in a sense and is important to take into account.
15. Returning to the reports from Benelong’s Haven, the most recent notes that “his adherence to rules is good and he accepts responsibility. His general demeanour is good, that he was willing to help in any way possible. At AA meetings he was very well spoken and expressive. His interaction with others was friendly and helpful and his attitude was positive.” It noted that “although he had been at the Haven on previous occasions, he had become more committed to his rehabilitation. He understood” - the report noted – “that it was a do or die effort given his age.” It noted that “his discussions exhibited extreme honesty and he was regarded as trustworthy when sober. He assumed responsibility easily and acknowledged that his process of recovery must come from his efforts which he puts into the residential program.” All in all, the latest report noted that he “spent some 126 days in the rehabilitation centre.”
16. Mr Wiseman’s appeal came on before me on 5 February 2009 at Dubbo. After hearing submissions I determined to adjourn the appeal under s 11 of the Crimes (Sentencing Procedure) Act in order to assess his capacity and prospects for rehabilitation and also to demonstrate that rehabilitation had taken place.
17. Ms Skinner, who appears for him today, called him to give evidence. I was very impressed by him as a witness and of his account of his efforts at rehabilitation. He has undertaken the benefits of the rehabilitation centre admirably. He has been honest in acknowledging his drug addiction and has participated fully in the residential program, including being entrusted with administering drugs appropriately to other clients of the centre. That is consistent with the reports from the centre. His plans are to resume living with his partner who has also undergone rehabilitation successfully. They have a two bedroom housing department flat at Dubbo. He is going to mix with more positive people and look for work around Dubbo and perhaps undertake a TAFE course. He is willing to accept assistance from appropriate agencies for his rehabilitation and to look for AA meetings at Dubbo.
18. In my opinion his evidence and the evidence from Benelong’s Haven show that he has demonstrated that rehabilitation has taken place to a significant extent. Mr Wiseman wisely acknowledges that he will always remain an addict and will continue to require support in order to live a relatively normal life in the community despite his addiction.
19. Ms Skinner asks for a bond under s 9 of the Crimes (Sentencing Procedure) Act describing the offence as at the lower end of the scale. I am more inclined to accept Ms Graham’s submission that the offence is mid-range. It is an offence of breaking and entering with intent without the component of an indictable offence having been committed. It did involve a confrontation with one of the occupants of the home and the knowledge on behalf of all occupants that somebody was on their property. Ms Graham acknowledges that the choice is between a s 9 bond or a s 12 suspended sentence and has outlined the advantages of each course. I agree with Ms Skinner that a bond under s 9 is the appropriate course in this case for the reasons given by her and by Ms Graham.
20. I propose to allow the appeal and to impose a bond under s 9 for a period of three years.
21. I was in two minds as to whether I should impose a bond under s 9 or s 12. A suspended sentence under s 12 would more appropriately reflect the objective seriousness of this offence. However this is a case where the efforts at rehabilitation by the offender have been significant. A bond under s 12 is far less flexible if there is a breach. A relatively minor breach could result in Mr Wiseman going back into full time custody unless the breach was truly trivial. That could have a very serious impact on his efforts at rehabilitation. I therefore propose to impose the lengthy bond under s 9 rather than the suspended sentence.
22. The formal orders which I make under s 20(2) of the Crimes (Appeal and Review) Act 2001 are that I set aside the sentence of the learned Magistrate. Under s 9 of the Crimes (Sentencing Procedure) Act 1999 instead of imposing a sentence of imprisonment, I make an order directing Mr Wiseman to enter into a good behaviour bond for three years.
The conditions of the bond are these:
1. That he be of good behaviour.
2. That he notify the Registrar of the District Court at Dubbo of any change in his residential address.
3. That he come before the Court if called upon to do so.
4. That he subject himself to supervision by the Probation and Parole Service and accept their reasonable recommendations and directions so far as any grief counselling is concerned, drug and alcohol counselling, employment advice, or urinalysis in so far as those services are available.
HIS HONOUR: I think that deals with it Ms Skinner, Ms Graham.
GRAHAM: Might I ask that the appellant report to the Dubbo Probation and Parole Service within seven days.
HIS HONOUR: Is seven days enough time?
GRAHAM: Yes he will be there tomorrow.
22. Finally this condition: that he reports to the office of the Probation and Parole Service at Dubbo within seven days of today.
HIS HONOUR: Anything else?
HIS HONOUR: Mr Wiseman as I said you have won your appeal, you’ve got a bond for three years. You know what a bond is, you’ve had them before. You have got to behave yourself, you’ve got to stay out of trouble. If you get into trouble you are going to come back before me and obviously I have to work out what I’m going to do with you and you could come out worse.
But I have also made the conditions that I’ve listed. You have got to tell the Court if you change your address, you have got to behave yourself and most importantly report to the Probation and Parole Office and let them help you. You’ve had plenty of contact with them before, you know the benefits of getting help from agencies like that because you really have benefited from Benelong’s over the last six months. Probation and Parole are good at what they do.
You’ve heard the specific items of grief counselling, drug and alcohol, employment and urinalysis, they are all things which were mentioned in your evidence and you’ve heard both lawyers refer to them. They’re designed to assist you if they’re available. Do you understand all that?
APPELLANT: Yes your Honour.
HIS HONOUR: Okay, good luck.
APPELLANT: Thank you.
SKINNER: I will take him over to the Downing Centre to enter the bond. I’m not sure what time the papers will be available.
0
0
3