New South Wales District Court CITATION: R v Dane Clack [2007] NSWDC 243 JUDGMENT DATE: 2 November 2007 JURISDICTION: Criminal JUDGMENT OF: Nicholson SC DCJ DECISION: Stood over for Progress Report 14 December 2007 at Parramatta District Court.; Order full background PSR.; BREACH OF BOND ; Leave given to withdraw appeal.; DRIVE WHILST DISQUALIFIED; Pursuant to s11 of Crimes (SP) Act bail for 12 months.; Conditional upon:-; Be of good behaviour for duration of bond.; Re-enrol in the personal support program conducted by Wesley Uniting by 4pm Monday 5th November 2007.; Participate in all programs with a view to advancing his prospects to gain employment in one of his skilled-based areas.; In the event of attaining such employment he will do all he can to maintain it. ; Accept supervision of P&P at Maitland to effect that he will report to Maitland P&P with a copy of these orders by 4pm Monday 5th November 2007.; He will comply with all reasonable directions of P&P and attend all appointments, counselling, treatment and program sessions as directed by P&P.; I commend counselling in respect of self-image issues, life skills, parenting and anger management, drugs and alcohol.; He is to discuss with P&P and Wesley Uniting whether he is suitable to re-enrol in Electronics at Tafe for 2008.; He is to submit to random urine tests no more than 4 times monthly at the direction of his Case Manager with P&P.; Any failure to supply urine or dirty urine is deemed a breach of the bail and to be reported to His Honour. For the purposes of this condition a prescribed dose of methadone is not a dirty urine.; To maintain contact at least once fortnightly with "Crellyn" at Justice Health.; He is to report to Jenny Willis at 1pm on 16 November 2007 at the Raymond Terrace Community Health Centre and thereafter fortnightly.; He is to provide P&P on or by 28th day of each month proof of fortnightly counselling with Jenny Willis. Such counselling to focus on self-image, life skills and matters contributing to his depressed state.; He is to abstain from consumption of all alcohol beverages for the duration of the bail. CATCHWORDS: Criminal Law - Severity Appeal from Local Court - Drive while disqualified - full time custody - conditional s11 bail. LEGISLATION CITED: s.11 Crimes (Sentencing Procedure) Act 1999 PARTIES: Regina Dane Clack FILE NUMBER(S): 07/32/0702 SOLICITORS: Crown: Ms Irwin Def: Ms Alvares JUDGMENT 1 HIS HONOUR: Dane Clack identifies as an indigenous Australia. He is now twenty-nine years old. He was born and raised in the Newcastle area. For the first eighteen years of his life he managed to stay out of trouble with the law. 2 However, in the eleven years between ages 18 and 29 things have been a disaster for him. Three and four times annually he is before the summary courts for a range of offending, including larceny, carrying cutting weapon, assault police, malicious damage to property, PCA, drive whilst disqualified offences, contravene apprehended domestic violence and, I suspect, others. He has been sentenced to prison many times during these eleven years. He has been on good behaviour bonds on many occasions. His shortest sentence appears to be one of fourteen days; the longest one of twelve months. 3 He says that he now realises he has to confront those issues which are causing him to commit crime. I intend to give him an opportunity to do so in what I am hoping is a more structured way than he would normally receive. 4 He comes before the Court on an appeal from a six months sentence imposed by the Local Court magistrate. The papers show that he was also intending to appeal against an eighteen-month s 9 good behaviour bond imposed upon him for breach of an earlier bond. That appeal has been withdrawn and, in those circumstances, there is no need for any further order made by me because the order of the magistrate will stand. I give him leave to withdraw. 5 The circumstances surrounding the six-month offence commence at 12.15am, and why at that time of the morning is difficult for me to understand. On 11 August 2007 police observed a vehicle travelling along Glebe Road in a southerly direction. They activated their red and blue warning light, stopped the vehicle in Parkway Avenue at Bar Beach and administered a random breath test. The appellant returned a negative test. Police asked to see his licence. He indicated he did not have a licence with him. He was asked whether he had a licence, and he said no. Police conducted a check that revealed he was disqualified until 2022. It also revealed it was the eighth occasion on which he had driven either while he was disqualified or while he was unlicensed. He said to police, when asked, the reason he was driving was he was going back to his parents' house at Gateshead. 6 He has a partner of some seven years, which would indicate a capacity to have a stable relationship, although it may be some of those AVOs may relate to that relationship. He has a seven-year-old son from that relationship. He also has an older boy aged thirteen from a prior relationship. The mother of that boy is not keen for the youngster to associate with him because of his continuous offending to date. He is having difficulties with his parents for the same reason. 7 What was interesting was that when I asked him as to his skills, a man who was relatively depressed and down in presentation, lit up and began to tell me the things that he was good at. Carpentry and joinery, good with making cabinets and demountables, he had skills in electronics and, indeed, had done some TAFE study in terms of electronics. He was doing maintenance, has actual music theory behind him, perhaps not in terms of a formal course but in terms of study and discussion with a guitarist, and has some skills and his own guitar. He is capable of painting; by that I mean painting a house. He is also skilled, he says, as an artist in painting. 8 His childhood, particularly his school childhood, seems to have been traumatic for him. There seemed to me to be numerous issues in his past that may well require counselling, including his schooling and including his impotence and sense of frustration in forming a relationship with his eldest son. 9 He claims an inability to talk to anyone unless he is familiar with the setting. He certainly had little difficulty talking to me in Court, but he says that is because he is used to it. It will remain to be seen whether this is simply a repeat performance of what he has said in Court on past occasions or whether this is a genuine attempt by him to make a new start. 10 He has to date served one month of sentence. What I propose to do is to put him on a s 11 bond and monitor his progress for the next six months. In the event that he demonstrates a capacity to rehabilitate, then I will suspend the sentence that has been imposed upon him. I will have to make some allowance for the time already served, but that can be done. 11 What I propose to do now is to set the terms of s 11 bail. We have sought, as best we can, to reduce those potential areas where he may trip up, but what I will do is grant him bail pursuant to s 11 of the Crimes (Sentencing Procedure) Act conditional upon him, firstly, being of good behaviour for the duration of the bond; that means, not driving someone else's motor vehicle, not driving at all indeed, not abusing drugs. 12 Secondly, he is to enrol or re-enrol in the personal support programme conducted by Wesley Uniting by 4pm Monday. He is to participate in all programmes with a view to advancing his prospects to gaining employment in one of his skill-based areas. The next condition is, in the event that he obtain such employment, he will do all he can to maintain it. 13 He will accept supervision of Probation and Parole at Raymond Terrace. To effect that, he will report to Raymond Terrace with a copy of these orders by 4pm Monday. 14 So that is two places you have got to be on Monday, all right? 15 He will comply with all reasonable directions of Probation and Parole, and attend all appointments, counselling, treatment and programme sessions as directed by Probation and Parole. I commend counselling in respect of self-image issues, life skills, parenting, anger management, drugs and alcohol. He is to discuss with Probation and Parole and Wesley Uniting whether he is suitable to re-enrol in electronics at TAFE for 2008. 16 He is to submit to random urine tests no more than four times monthly at the direction of his case manager with Probation and Parole. Any failure to supply urine or dirty urine is deemed breach of the bail and to be reported to me. For the purposes of this condition, a prescribed dose of methadone is not a dirty urine. So you can still stay on your methadone. 17 He is to maintain contact at least once fortnightly with Ms Crellin at Justice Health. He is to report to Jenny Willis at 1pm on 16 November at the Raymond Terrace Community Health Centre, and thereafter fortnightly. He is to provide the Probation and Parole Service on or by the 28th day of each month proof of fortnightly counselling with Jenny Willis. 18 You do that by saying to her very early, "Every time I see you you've got to write me a letter or on your card, which I will give to Probation and Parole." That is all that is needed. All right? APPELLANT: Yep. HIS HONOUR: And if you have got a copy of these conditions, you show that one to her and you say, "I need a card." She will do it. APPELLANT: All right. HIS HONOUR: Coming back to the Jenny Willis thing, such counselling to focus on self-image, life skills and matters contributing to his depressed state. 19 I am no psychologist, but I am pretty sure you are depressed. 20 He is to abstain from consumption of all alcoholic beverages for the duration of the bail. 21 I order a copy of his evidence given this morning. 22 As I said, the bail is a six-month bail. I will want to see him before Christmas, which is 14 December. He will have to come to Parramatta. Because I want to see and I want documents that are showing me the progress that he has made. 23 I order a full background presentence report. ******** 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. 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