District Court New South Wales Medium Neutral Citation: R v Laughton [2021] NSWDC 366 Hearing dates: 30 July 2021 Decision date: 30 July 2021 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Sentenced to a term of imprisonment of 3 years. Non parole period of 1 year 9 months. Catchwords: CRIME - Aggravated Break enter and steal and commit the serious indictable offence of larceny SENTENCING - Relevant factors on sentence - offence against former friend - enter at night - jewellery taken - long term drug addiction – early guilty plea- offences committed on parole - need for specific deterrence – less need for general deterrence - special circumstances Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: DPP v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 Ponfield v R [1999] NSWCCA 435;(1999) 48 NSWLR 327 Category: Sentence Parties: James Laughton (the offender) Director of Public Prosecutions Representation: Solicitors: Mr M Kwan (for the offender) Ms N Verghese (for Director of Public Prosecutions) File Number(s): 2020/00342157 sentence Facts for sentence 1. In September 2020 James Laughton, now 31, met a young woman on a dating app. They saw each other a few times. He visited her home in Gwyneville about three times. She lived there with her friend and her friend's 3 children. Laughton and the young woman broke up in November 2020. 2. On 1 December 2020 the young woman was at her home with her friend and one of her children. She went to bed about 10PM. The house was closed but a key had been left in the lock so that her friend's former partner could drop off two of the children early in the morning. At 4AM she woke up to find the offender going through her things. He was wearing a hooded top and a medical mask. She confronted him and asked, "why are touching my things:' He replied, "I'm not. You wouldn't believe me anyway." 3. He was touching her things. In fact he did more than that; he took them. He took the house key, her car key and jewellery valued at nearly $8,000. 4. The sound of yelling woke one of the children. Laughton fled. Police were called. He was arrested that morning at Oakhurst. The keys and a small quantity of the jewellery were recovered. He has been in custody ever since. 5. Laughton was charged with break enter and steal and commit the serious indictable offence of larceny. The offence was aggravated because he knew someone was home: s112(2) Crimes Act 1900. That offence carries a maximum penalty of 20 years imprisonment. There is a standard non-parole period of 5 years. The standard non-parole period represents the non-parole period for an offence which, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness. I am required to give content to the standard non-parole period. It and the maximum penalty are one of many guides to the exercise of my sentencing discretion. 6. Laughton accepted his guilt in the Local Court requiring a reduction in the otherwise appropriate sentence of 25% to reflect the utilitarian value of that plea: s 25D Crimes (Sentencing Procedure) Act 1999. Objective seriousness 1. The guideline judgment Ponfield v R [1999] NSWCCA 435; (1999) 48 NSWLR 327 can assist in evaluating the seriousness of the offence, however any assessment of objective gravity must be made by reference to the particular facts of the case. 2. Here a residential property was entered. A woman's bedroom was entered. She awoke to find a masked man going through her things. That he was not a stranger does not reduce the seriousness of the offence. They had ended whatever relationship they had. He knew she was there. He also knew that there was likely to be another woman and possibly children in the home. A young boy was also woken and saw him leave. No damage was done but property of both monetary and sentimental value (given it was jewellery) was taken. 3. The degree of criminality involved in breaking into another's home should not be underrated. Offences such as this cause grave disquiet. Having had your property entered, gone through and valuables taken can leave a victim with sense of violation and unease. 4. The offender admits he had taken methylamphetamine and Valium before committing the offence. He told his psychologist he wanted property so he could buy more drugs. Drug use cannot mitigate a crime such as this, to the contrary, that he was affected by drugs made his behaviour potentially more unpredictable. Criminal Record 1. Laughton has been before the Local Court a number of times for dishonesty and domestic violence offences. He has spent short periods in gaol. He had been released to parole on 9 July 2020 and this offence breached the conditions of that parole. The pandemic restrictions did, it appears, restrict his capacity the get the full benefits of parole supervision. 2. He is not entitled to the leniency often given first offenders and the fact he was on conditional liberty is an aggravating factor that must be taken into account. Further, some of his previous offending behaviour, in particular his behaviour toward women with whom he has been in a relationship indicates he has not learned the lessons custody is meant to bring home. Subjective case 1. I have the benefit of a report from Ms Godbee, a Forensic Psychologist (23 June 2021). In it she sets out Laughton's personal history. He did not give evidence but what he told her is not controversial. Her opinions can be accepted. 2. Laughton told Ms Godbee that his early life was affected by his father's violence to his mother, his parent's separation and his mother's drinking and strict discipline of him. His home and school life was disrupted. He has had a number of jobs since he was 14 but each has ended because of his lack of discipline. On one occasion he was stabbed at work and has, as a consequence, been treated for Post-Traumatic Stress Disorder (PTSD). 3. He reports regular drug and alcohol use since he was 15. He was using methylamphetamine and valium at the time of his arrest. 4. Ms Godbee sets out Laughton's history of PTSD, low mood and regular drug use. She hypothesises that he has suffered persistent depression such that he "does not recognise his sadness as abnormal. His sadness has likely contributed to his drug use as an emotional coping strategy." He believes he is a "bad person" who "fucks everything up." 5. She says that he now displays some insight and is ready for intensive drug and alcohol programmes. Sadly Wollongong District Court does not have access to any Drug Court programs. I am sure he would benefit from them. 6. Laughton will also need concurrent psychological treatment to help improve his fear and mood. This is more likely to occur in the community rather than gaol. 7. Laughton has, and will continue to, serve his sentence subject to the COVID restrictions; a hardship I will take into account. Submissions 1. Ms Verghese, Solicitor for the Director of Public Prosecutions, in written and oral submissions, carefully took me through relevant principles and authorities. Concessions were made but she also properly stressed the impact offences such as this have on their victims and the community. She notes that Laughton has shown no remorse or understanding for his victim. 2. Mr Kwan, for the offender, in written and oral submissions, submitted that the absence of aggravating features and the relatively small amount of property stolen, allowed this offence to be characterised as below mid-range. 3. Given the wide range of very serious crimes encompassed by s112(2) Crimes Act that seems a fair assessment. He asked that appropriate weight be given to the offender's background and related drug problem. He took me through reasons not to put undue emphasis on the standard-non-parole period and why a substantial finding of special circumstances should be made. 4. Mr Kwan also suggested that the offence was not premediated. Given the time of night and what the offender was wearing I cannot accept that submission. Synthesis 1. It is accepted that the offender's background has left a mark on him. It helps explain why he took up the use and abuse of illicit drugs when young and why he did what he did this night. If he can get help dealing with his underlying mental health and related drug problems he may be able to turn his life around. 2. Often heavy sentences are imposed in cases like this so that other would-be burglars just might be deterred. Those principles can be moderated here because of the offender's psychological conditions: DPP v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 at [177]. But, that said, Laughton must learn and appreciate that what he did was seriously wrong and could have a lasting impact on a woman with whom he once, albeit briefly, shared some affection. 3. He must also be punished and appropriate retribution must be achieved. The community has the rightful expectation that judges will act responsibly and impose meaningful penalties for offences such as this. The sentence can however be structured so that he can have the opportunity of accessing treatment and rehabilitation programmes in custody and while on parole. This important purpose of sentencing should never be lost sight of. Orders 1. Mr Laughton in accordance with your early guilty plea, adhered to today, you are convicted. 2. You sentence will commence on 2 December 2020. It will consist of a non-parole period of 1 year 9 months. There will be a parole period of 1 year 3 months. The total sentence is 3 years. The sentence expires 1 December 2023. Release to parole on 1 September 2022. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 July 2021