New South Wales District Court CITATION: R v Alan COSGROVE [2007] NSWDC 375 HEARING DATE(S): 11 May 2007 EX TEMPORE JUDGMENT DATE : 11 May 2007 JURISDICTION: Criminal JUDGMENT OF: Berman SC DCJ DECISION: Sentenced to imprisonment with a non-parole period of one year and a head sentence of three years. CATCHWORDS: Criminal law - Sentence - Break, enter and steal - Form 1 - DNA Analysis - Significant drug user PARTIES: The Crown Alan Cosgrove FILE NUMBER(S): DC 2006/11/0047 COUNSEL: J Watts - Offender SOLICITORS: NSW DPP Catherine Hunter SENTENCE 1 HIS HONOUR: Alan Cosgrove appears for sentence today after having pleaded guilty at an early stage to an offence of break, enter and steal. Because of the plea, I will discount the sentence I would otherwise have imposed by twenty-five per cent. 2 When I sentence him for that matter he has asked that I take into account a matter on a Form 1, which is also a break, enter with intent to steal committed at about the same time as the matter for which Mr Cosgrove is to be sentenced. 3 These offences were detected of course soon after they were committed, but the offender's involvement was not made known until the results of DNA analysis were obtained. Although the offences were committed in December 2004, it was not until mid 2005 that the offender was charged with them. That, of course, raises a number of issues. The delay, for which the offender is not responsible, means that the offender is in a different position to the position he would have been in had he been dealt with soon after the commission of these offences. In particular in the offender's case he was in the meantime sentenced for an offence of robbery. His non-parole period for that offence expired on 24 November 2006, and so the offender's custody since that date has been solely referable to this matter. 4 I should also note that the offender has now been in continuous custody since 20 December 2004, a matter which is of particular significance when the issue of special circumstances is considered. 5 The offender is now twenty-eight years of age. He has a criminal history which is sadly common amongst drug users. The offender's drug use commenced at a very early age when he started to use alcohol and benzodiazepines on an experimental basis. By the age of fifteen he was consuming alcohol on a daily basis and using amphetamines every other day. He was imprisoned when he was sixteen. By the age of seventeen he had begun smoking heroin and matters progressed until he was injecting that drug. 6 The offence for which the offender is to be sentenced was committed whilst he was a significant drug user. He was addicted to drugs and so clearly needed the money to pay for his drugs through criminal means. 7 The offence for which he is to be sentenced is particularly serious. The offender took an enormous quantity of valuable items from the home of his victim. He also took items that were no doubt of considerable emotional significance to those who owned them. A great deal of jewellery including two wedding bands were stolen by the offender. None of the property was recovered. 8 The consequences of offences such as this extend far beyond the individual victims too. It is no excuse at all that they were committed to buy drugs. However, the relevance of the offender's drug addiction is primarily that his prospects of rehabilitation depend upon him overcoming his drug issues. The offender has been relatively drug free since his incarceration. I say relatively because he admitted to smoking marijuana since he was taken into custody. He recognises, however, that he needs some assistance in ensuring that he will remain drug free upon his release from custody. For that reason he attempted to do drug rehabilitation courses, but unfortunately once he was charged with this matter his classification was altered and it became impossible for him to continue the courses. He hopes to do the Nura Nura course before his release from custody, and it is my recommendation that that occur. It is unfortunate that the offender's involvement in this matter was not detected earlier. If it was, I expect that more could have been done whilst he was in custody up until now to allow him to do the drug rehabilitation courses from which he would clearly benefit. Perusal of his custodial history shows that the offender has been moved from correctional centre to correctional centre over the last few years making any sort of continuous form of counselling or other rehabilitation impossible. 9 I should mention the specific aggravating circumstance that this offence was committed whilst the offender was on bail. 10 He is on protection at the moment. That relates to his desire to cast aside some of his former associates because the offender believes that if he was to continue associating with them, it would make it much more likely that he would get involved in further criminal activity. His former associates have not reacted well to being cast aside, and so the offender is, as I said, currently on protection, although after I sentence him today, in the event that he is taken to a particular correctional centre, he proposes to sign himself off. I will, however, take into account that the offender has been on protection up until today and the conditions of such custody can be harder than those of the general prison population. 11 I mentioned special circumstances before. There are clearly special circumstances in this case. Not only is there the problems I have identified with the offender's ability to access rehabilitation programs in custody being interrupted after being charged for the present matter, but also the fact that the offender has been in continuous custody from 20 December 2004 must be recognised when I set the appropriate period of eligibility for parole in this matter. The adjustment in the offender's favour from the statutory ratio will thus be a significant one. 12 Mr Watts addressed me as to when the sentence should commence. As I mentioned earlier, the offender's existing non-parole period expired on 24 November 2006. Mr Watts, however, submitted that I should backdate the commencement of the sentence to a period before then, recognising the issue of delay has led to a situation where the offender is entitled to what might be perceived as a generous allowance in order to be lenient to him. I do not propose to backdate the sentence as Mr Watts suggests. I have taken into account in formulating the sentence that the offender has suffered through the matter not being dealt with soon after the offence was committed, and to commence this sentence at a time when he was serving a non-parole period for another offence would be effectively to give the offender a benefit to which he is not entitled. To put it bluntly, he would be getting some time for free. Indeed, it is sometimes argued that in situations such as is facing me today the sentence should commence on the date it was imposed. I will commence the sentence on 25 November 2006. 13 The offender is sentenced to imprisonment. I set a non-parole period of one year from 25 November 2006. It will expire on 24 November 2007, on which day the offender is to be released to parole. I set a head sentence of three years. 14 I recommend, as I said earlier, that the offender is placed in the Nura Nura program before his release from custody. ********** 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.