New South Wales District Court CITATION: R v Lyons, Thomas [2010] NSWDC 194 JUDGMENT DATE: 21 May 2010 JURISDICTION: Criminal JUDGMENT OF: Nicholson SC DCJ DECISION: Convicted. Granted conditional s.11 Crimes (Sentencing Procedure) Act 1999 bail for 9 months. CATCHWORDS: Criminal Law - Sentence - S. 11 Bail - Break, Enter and Steal - small country town - residents at local club - Melbourne Cup function - offenders seize opportunity - coins, opals and plasma television taken - value approximately $4,000+ - minimal damage to property - breach of good behaviour bond - heavy cannabis user - probable undiagnosed and untreated mental health issues - poor rehabilitiation prospects - Aborigine - young offender. LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 CASES CITED: Brewster [1998] 1 CrAp.R 220 at 225 De Simoni (1981) 147 CLR 383 PARTIES: Regina Thomas Lyons FILE NUMBER(S): 2009/8823 COUNSEL: Crown: L Shaw Crown Prosecutor SOLICITORS: Defence: Mr.S. Lawrence JUDGMENT 1. Thomas Lyons was indicted on 2 November 2009 for that he, at Lightning Ridge in the State of New South Wales, did break and enter the dwelling house situated at lot 39 Fantasia Street and therein commit a serious indictable offence, namely larceny. 2. He was indicted with a co-offender, Kelvin Peter Morris, who is said to also have participated in the same break and enter. Both were indicted before Sir Richard Woods ADCJ at Dubbo on 2 November 2009. 3. Both were given bail. They came before me in February and the sentencing proceedings were advanced on that occasion. Their bail was continued. The matter was set down, if memories serves me correctly, on 1 April 2010 for resolution in Sydney and a sentence determination. 4. I received from both of them an excuse that they could not come to Sydney because the flood waters had reached Broken Hill. I caused inquiries to be made in Lightning Ridge. I caused inquiries to be made to the police in Lightning Ridge and was informed by the police that the flood waters had not reached Lightning Ridge and there was no inhibition or obstacles to people coming or going from Lightning Ridge. 5. Notwithstanding I had actually had independent evidence - sorry, not evidence, but a comment from a friend of mine who I sympathised with because of the flood waters and he said, that they had not arrived at about the same time, I set the matter down for resolution a fortnight ago, I think it was. And Mr Lyons got as far as Dubbo and then decided that that was far enough and consequently I ordered his arrest then and there. He has been in custody for the fortnight and appears on remand. I stress that because I want him to understand how serious this matter is and even though at the end of the day he will be given a suspended sentence he should not think that people are mucking around here. Facts 6. The facts alleged against each are identical, save for an additional para (10) in the agreed facts tendered against Lyons regarding his arrest. 7. I will come to those facts now. About 2.30pm on 4 November 2008- I pause to interpolate, 4 February 2008 was Melbourne Cup Day- the victims Mr and Mrs Ellen left their home in Fantasia Street, Lightning Ridge to attend the Lightning Ridge Bowling Club, where they were planning to watch the Melbourne Cup Horse Race. 8. They locked their front door, but only closed the back door and the outside screen door, which enters into the back veranda area, where they closed but again did not lock, as they were in hurry to watch the race. They returned home at four o'clock to find their Celestial wide screen television missing; they noticed a 150 gram coffee jar missing from the lounge room, which contained opals. Anyone who knows anything about mining opals knows that a collection of opals can often take a lot of hard work and can sometimes take months and months and months to accumulate. 9. My view of somebody who takes a person's collection of opals is that it is a weak act against a working man. I have little to say in praise of such a person. These opals included two halves of a single opal, nobby, a coloured green on black. And about seven or eight smaller cuts, with good colour, valued about $2,000. 10. Also missing from the spare bedroom was a yellow ice-cream box containing $450 in gold coins. That would seem to say to me that these people had been collecting their spare change in a jar for some purpose that was probably going to be a treat for them. This is not a crime against some rich mining magnet, this is a crime against a working man and woman in a working man's town, of somebody who, if memory served me, was unemployed. 11. The victims spoke to their next door neighbour, Renee Miller, who stated that she witnessed the burglary and that she knew the identity of the two males responsible. She told the police that, and I accept that between 3.30 and 3.40 she was standing at her kitchen sink overlooking the rear yard of the victim's property. She said that she observed a male person in horizontal stripped red shirt crouched down, running from the back veranda towards the rear shed of 39 Fantasia Street. She recognised him as Thomas Lyons and he was carrying a round clear coffee jar in his right-hand. I have no doubt it is the relevant coffee jar. She saw the opals and opal dirt in this. He was running in a crouched manner behind the shed and out of sight. Ms Miller heard the sound of someone jumping over the back fence. Ms Miller said that she has known Lyons since she was eight or nine as they both went to the same school in Lightning Ridge. 12. Ms Miller then walked out the back steps of her premises and looked in the rear yard of 39 Fantasia Street. She noticed another male person at the screen door of the veranda, who she recognised as Kelvin Morris. She was able to describe the clothing he was wearing. He, that is Morris, lent over towards the door handle and appears to be attempting to open the back screen swinging door. It was open by about an inch when Morris noticed Ms Miller. He then discreetly pushed the door shut. Then continued to lean as if to conceal himself. 13. She called out to him, "Hey, don't do it." Morris said, "We didn't take anything." She said, "Good, don't. They're nice people." 14. He said "Nah, we haven't taken anything." Morris then stood up and then ran down the yard to the back fence and jumped over it. Ms Miller could see both of them running fast into the scrub at the back of the houses. She had known Morris for about the same time as she had known Lyons. 15. She saw them around midday wearing the same clothes as she saw them earlier. Both were arrested, one on the 13th and one on 14 November. Lyons was arrested on the latter date in a car park of the Lightning Ridge Bowling Club. Objective Criminality 16. From the facts, as he find them to be, a sentencing judge is required to assess what is called the "objective criminality of the offence" as an essential step in assessing the seriousness of the criminal behaviour of this offender. That is done by comparing objectively the criminality exhibited in the instance case with criminality of offences of a similar kind. It is in this ways that the objective seriousness of this offence is evaluated. We compare this with other break and enter offences. 17. The objective criminality has the most important impact upon sentencing outcome. So far as breaking and entering are concerned it is significant to note that the offence of larceny, if it is prosecuted on indictment, carries a maximum penalty of five years. If you add to it breaking into the house and entering it that maximum penalty triples, that is because, nobody, even law enforcement officers, can go into anybody's property unless they are authorised by the owner or by a court. 18. We regard the property of other people as their private domain and breaking and entering is an intrusion into their privacy. It is because larceny and because breaking are offences against property that domestic burglary is and has always been regarded as a very serious offence. It may involve a considerable loss to a victim. Even when it does not, the victim may lose possessions of particular value to him or her as said by Lord Bingham in Brewster [1998] 1 CrAp.R 220 at 225: The lost of material- possessions is, however, only part and often only a minor part of the reason why domestic burglary is a serious offence. Most people, perfectly legitimately, attach importance to the privacy and the security of their homes. That an intruder should break-in and enter for his on dishonest purposes leaves a victim with a sense of violation and insecurity. 19. In this case there were electrical items taken or an electrical item of some value taken and the opals taken and the coins. All of which would have more significance to the their owners than they ever did to Lyons or Morris. The items taken would appear to be worth something in the order of $4,000 to $5,000. It is likely the gold coins had been saved by the Ellens over a substantial period. 20. Opals are likely to have been the result of mining efforts by Mr Ellen. Even if not, their value lies in their unique colour patterns. These items have a value over and above their monetary value. Indeed opals are a thing of individual beauty. 21. I cannot find the offence was planned but given its timing impeccable to match the time of the Melbourne Cup Race there was clearly some planning about the opportunity. How long they had been at it is not clear from the evidence. That is how long that they been at determining what they would do, it is not clear. It was certainly opportunistic in that they recognised that they had small time to spare because of the functions in the Lightning Ridge Bowling Club focussed upon the Melbourne cup. 22. Each has been charged with a non-aggravated form of breaking and entering. Consequently De Simoni (1981) 147 CLR 383 requires that I, do not aggravate criminality of either, on account of the presence and assistance of one or the other. This seems to be a deal done, for some reason, by the Crown with the defence. 23. The agreed facts make no mention of the damage to the house or referred to any significant disturbance within the house. If so, again it would appear to be a favour delivered by the prosecution to the defence, that is if there was such mess because both of those matters would otherwise be aggravating matters. 24. Among the objective facts, however, in respect of each offender there is a breach of conditional liberty. Thomas Lyons was in the last three weeks of two of a s 33(1)(b) bond from the Children's Court. The law makes it clear that those who are given a lesser sentence to an alternative to imprisonment must remain of good behaviour while the bond or periodic detention or, in this case, suspended sentence is still ongoing. Failure to do so is regarding as aggravating the criminality of the fresh offence because it is seen to be taking criminal advantage of the being at large. Subjective Matters 25. I turn now to the subjective matters of Thomas Lyons. I am entitled to do so, in fact I am actually required do so, because I am not only sentencing him for the offence, but I am sentencing him personally and there may be matters in his past history which points to reasons why a greater or indeed a lesser sentence should be given. Family Background and Relationships 26. Thomas Lyons is a single Aboriginal man aged eighteen and a half at the time of the offence and nearly twenty at the time of sentence. He is father to a three year old, who resides with the paternal grandmother. He is father of a child who passed away in 2008. He resides with his mother in Lightning Ridge. His parents separated when he was aged thirteen. Their relationship has been marred with alcohol, drug and their well-known partner, domestic violence. The relationship was turbulent, the departing acrimonious. Lyons has no contact with his father. He does have a relationship with Shantelle, as I understand it, who was in court to support him on the last occasion. Education, Skills and Employment 27. He left school in Year 8, he says, to become a full-time carer of his mother who, as I understand it was, suffering chronic airway disease. His departure from school may also have been motivated by his modest progress. He is semi-literature. He can read but not write. He has been in paid employment. In so saying I do not seek to diminish his role as a full-time carer. Indeed they form valuable work in the community by looking after ill relatives. He claims he wants to do a TAFE course, but so far as can I see has done nothing to advance that desire. General Health 28. He presents as a young man who is apparently of good physical health. Mental Health 29. He has been a very heavy abuser of cannabis. He has also used methamphetamine. Whether because of his level of drug abuse or because of congenital vulnerability there appears to be serious undiagnosed and untreated mental health issues. There is past history of auditory hallucinations in January of 2008. He had an untimely death of a child to grieve through. Drugs and Alcohol 30. He is a polydrug abuser. He commence his cannabis use, he says, at the age of seven. His primary drug of choice is cannabis, which he has consumed at a staggering fifty cones per day, at what I estimate makes it a daily cost of $100. Where that money comes from I do not want to think about. 31. He also uses methamphetamine. He would consume his fortnightly Government allowance within the week. So what does he do for the second one? Currently he is on methadone and a methadone maintenance program, which as I understand, would be related to heroin abuse or opioid abuse rather than methylamphetamine abuse. He told Probation and Parole in December 2009 that he had been absent from cannabis "for a few weeks". Attitude to Offence 32. He accepts the agreed facts. I am satisfied his plea comes as a result of a plea discussions by his legal representatives with the Crown after committal on a more serious charge. 33. His plea is late entered, it must be the Crown views it as adequately reflecting his criminality, although that more serious charge was open on the evidence. Prosecutorial discretion has to be recognised by this court. There is nothing, however, which suggests any insight or compassion for his victims in respect of the loss he and his mate caused them. Rehabilitation Prospects 34. His rehabilitation prospects are depressing. On the positive side he has the support of his sick mother and Shantelle. He wants to advance his education or skills through TAFE, but has not yet made the steps to do so. He has good physical health. He is young and his character is not yet set. 35. On the negative side there is an absence of education and vocational skills; there is an absence of opportunity for semi-skilled work in Lightning Ridge; there are unsolved mental health issues, which are still being ignored; there are recent criminal offending suggesting alcohol and drug related issues; there is a mounting debt being chased by the State Debt Recovery Office. He has spent eight of the past twenty-four months in custody plus the last two weeks. He is a risk taker. Eight of the last twenty-four months equates to one day out of every three of the last two years he has been in custody. He has a long history of alcohol and drug abuse, which he now appears to be addressing, although with what success, is unclear. Frequently the addressing only occurs for the length of the criminal proceedings. Past Antecedents 36. At the time of this offending he had two prior appearances before the Children's Court and one before the Local Court. In 2005 he was charged with assault occasion actual bodily harm and malicious damage to property. In 2007 it was another assault and a conviction for domestic violence offence. The same year he has numerous motor vehicle offences also dealt with in the Local Court. 37. There are offences after his involvement in this offence which point to a lack of contrition and poor rehabilitation prospects. 38. Motor vehicle offences were dealt with s 10A convictions. The possess prohibited drug and goods in custody were dealt with by way of a two year good behaviour bond. 39. Both of the offenders were young Aboriginal men who had alcohol and drug issues. They are both risk takers. In the case of both there are real stressors facing each. One with a daughter in fragile health, the other with issues relating to the untimely death of his child and mother incapacitated by a serious illness. There are also mental health issues for Mr Lyons. 40. All of these are factors which may impact upon the future behaviour if not addressed. I cannot rule out that they may impact upon behaviour, so that offending behaviour occurs. Nonetheless I have indicted each will be given nine months to establish that he can rehabilitate. I am conscious that this offence occurred in 2008 and that a s 11 bail will necessarily delay further finalisation of the matter. Section 11 bail - you will need to explain it to him, Ms Carr is a sentencing option, it appears on the Crime (Sentencing Procedure) Act 1999. But of course its use, as I say, necessarily delays the ultimate sentencing outcome. In the event the accused, this accused, would regard himself as prejudiced by delay either or both may seek finalisation of the matter. 41. As presently advised I would probably impose a custodial sentence. What I am seeking to do is to give them an opportunity to have that sentence suspended. 42. The sentence that I would impose is one of nine months. The question now is whether it should be suspended or whether it should be imposed forthwith. If in the pursuing nine months, the next nine months, this offender demonstrates that he can be rehabilitated and stay out of custody and does not re-offend. I will suspend the nine months sentence when I impose it in nine months sometime. 43. That will be a total of eighteen months that will be on, what I might call, conditional liberty. My primary objective is to seek his rehabilitation, so that the community can be protected by his reform. If I cannot protect the community by his reform I will have to protect them for a shorter period by his incarceration. 44. This offender is granted bail pursuant to s 11 of the Crimes (Sentencing Procedure) Act 1999 upon the following conditions that he remain of good behaviour for the nine month period. That he accept supervision from Probation and Parole. He should understand that they are my eyes and ears. I do not live in Broken Hill. They do or at least they visit Lightning Ridge. They will tell me whether he is attending the meetings and whether he is attending the programs that I set. If he does not attend the meetings and does not attend the programs that will be a breach of bail and he will have to come back for sentence and of course it will be full-time custody. 45. There are further conditions. He will accept supervision from Probation and Parole and accept all reasonable directions from his case manager. 46. He will abstain from the consumption of alcohol for the first six months of the bail period. He will abstain from all illegal drugs for the duration of the bail period. He will submit to the random breath and urine tests as conducted or directed by Probation and Parole for the purpose of detecting the consumption of alcohol and/or illicit drugs. Any dirty drug test will be deemed a breach of bail. 47. Failure to provide urine or the provision of anybody else's urine will be deemed a breach of bail. 48. He will undertake counselling with a psychologist, psychiatric or counsellor determined by an agreement between he and Probation and Parole case manager for the duration of the bail or such short a period as shall be determined by the case manager, psychologist, psychiatric or counsellor. He will report three times to me by AVL link to indicate the progress he is making and his compliance with the bail conditions. [Date for progress report by the offender to the court was set] 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.