New South Wales District Court CITATION: R v Timothy NEWTON [2009] NSWDC 230 JUDGMENT DATE: 8 May 2009 JURISDICTION: District Court of New South Wales JUDGMENT OF: Cogswell SC DCJ DECISION: For the offence of aggravated break and enter with intent to steal - non-parole period of 24 months and balance of term of 15 months. For the offence of take and drive a conveyance without consent - non-parole period of 18 months and balance of term of 6 months. CATCHWORDS: CRIMINAL LAW - sentence - aggravated break and enter with intent to steal - take and drive conveyance without consent - plea of guilty not long before trial - discount available for plea of guilty - psychological report - genuine desire for rehabilitation - prior criminal record - need for personal and general deterrence LEGISLATION CITED: Crimes Act 1900 s 113(2), s 154(1)(b) Harmouche v The Queen (2005) 158 A Crim R 357 CASES CITED: Thomson v The Queen (2000) 49 NSWLR 383 Dib v The Queen [2003] NSWCCA 117 Borkowski v The Queen [2009] NSWCCA 102 PARTIES: Regina Timothy Newton FILE NUMBER(S): 2009/117657 SOLICITORS: New South Wales Director of Public Prosecutions Legal Aid Commission of New South Wales JUDGMENT 1. I am sentencing Timothy Adam Newton for two crimes committed by him on 8 March 2008. I have just determined an appeal by him from the severity of sentences imposed upon him by a magistrate partly for other crimes committed on the same day. The issues in this sentence which I need to address include the percentage of discount for his plea of guilty and the structuring of the sentences to the extent that they might run together. 2. The appeal which I have just determined concerned in part a fire set by Mr Newton on the night of 8 March 2008. After he had set that fire he got himself to a nearby suburb and broke into a house where a party was being held and then stole a car and drove away. That involved him being charged with aggravated break and enter with intent to steal, an offence against s 113(2) of the Crimes Act 1900 which carries a maximum of fourteen years imprisonment. It also resulted in a charge of taking and driving a conveyance without consent, which is a crime against s 154A(1)(b) of the Crimes Act and carries a maximum of five years imprisonment. It is for those two crimes that I am now sentencing Mr Newton. 3. I need to say briefly what happened. There was going on, on the night of Saturday 8 March 2008 at a home in Sutherland, a twenty-first birthday party. There were about forty guests there. During the party, which was at one end of the house, Mr Newton broke into the other end of the house by cutting a hole in a flyscreen covering a window and forcing the lock on the window. He went into two bedrooms and crossed a hallway. The occupants of the house and the guests of the party were obviously unaware that Mr Newton was taking this opportunity to attempt to steal property from the house. There was loud music and celebrations and a good amount of noise coming from the house. One of the occupants of the house went outside at about midnight to farewell a friend. She looked back and saw the hole in the flyscreen of the window and that the window was open. She then realised that the house had been broken into. It was then discovered that one of the guests' cars had been stolen. 4. The police facts record that Mr Newton permitted himself to be a passenger in the car when it was taken. Police were called. They had found the car earlier in the evening; it had collided with a fence. Police found a stain from which they took a DNA swab. The DNA swab confirmed that Mr Newton was connected with the stain and he was given a Court Attendance Notice regarding the crimes. 5. Mr Newton was arrested on 27 August 2008. He was committed for trial to the District Court from the Local Court on 16 November 2008. The trial date was fixed as 16 March 2009. On 19 February 2009, some three or four weeks before the trial date, he entered a plea of guilty to the charges. The plea was entered to an amended indictment which was amended during what is described as the case management process. The amendment, I think I have been told, was instead of being charged with break and enter and steal he was charged with break and enter with intent to steal. 6. Mr Leary argues that for his plea of guilty he should receive a discount of somewhere between fifteen per cent and twenty-five per cent. He acknowledges that it must be less than twenty-five per cent, the maximum available so far as the authorities are concerned. It must be less than that because he has not pleaded guilty at the earliest available opportunity. Ms Bryan on the other hand argues that the plea of guilty was delayed and that the authorities point out that this will have a significant impact on the percentage to be allowed. 7. I was assisted by both Ms Bryan and Mr Leary referring to authorities. In Harmouche v The Queen (2005) 158 A Crim R 357 the Court of Criminal Appeal examined the question of the appropriate discount to be allowed after a later plea of guilty. Hulme J, with whom Sully J and Latham J agreed, said at [39] that "the rationale for a 25 discount was the extent of the utilitarian benefit and the complexity of evidence gathering and of any trial which was avoided." His Honour was referring to the judgment of the Chief Justice in the guideline judgment about pleading guilty, Thomson v The Queen (2000) 49 NSWLR 383. Hulme J said that the Chief Justice in referring to a plea being entered at the earliest opportunity was obviously contemplating the committal stage of criminal proceedings. Hulme J referred to, with approval, the observations made by Hodgson JA in Dib v The Queen [2003] NSWCCA 117 where his Honour said: " If a plea is entered a long time after a person is first charged, but at a time when a lesser charge is substituted for a greater charge, the advantages to the administration of justice are less, even though the plea may have been made at the earliest opportunity. There is in any event no entitlement to a 25 per cent discount; and the fact that in this situation there are less advantages to the administration of justice can justify a smaller discount ." In the more recent judgment of the Court of Criminal Appeal in Borkowski v The Queen [2009] NSWCCA 102 Howie J, with whom the Chief Judge at Common Law specifically agreed and Simpson J generally agreed, reviewed the authorities concerning the discount involved for the utilitarian aspect of a plea of guilty. At [32] his Honour said in point one that "the discount for the utilitarian value of the pleas will be determined largely by the timing of the plea so that the earlier the plea the greater the discount." At point 9 his Honour said that "the utilitarian value of a delayed plea is less and consequently the discount is reduced even where there has been a plea bargain." Howie J also said at [31] of Borkowski that "it was difficult to see, in the usual case, a plea of guilty on arraignment could justify a discount of more than about 15 per cent." Mr Leary argues that that observation should be seen in the context of the facts of the case in Borkowski. Mr Leary argued that there was an additional factor which could be taken into account as well as the timing of the plea in this case, namely that there was some degree of potential complexity in the trial because of the DNA evidence. 8. Because in this case the plea was some time after the committal for trial and only some three or four weeks before the trial fixed I propose to allow a discount closer to fifteen per cent than twenty-five per cent. I allow a modest amount for Mr Leary's argument about the complexity of the trial although I have some reservations about the degree to which a trial would be these days made significantly more complex by DNA evidence. Nevertheless I will discount Mr Newton's sentence by eighteen per cent because of the fact that he has, by pleading guilty to these charges, saved the community and the justice system the expense of a defended trial. Any sentence in this case should date from 23 February 2009 at the latest, which is when Mr Newton's custody attributable to these offences only commenced. 9. I need to make some assessment of just how serious these crimes were. Both Ms Bryan and Mr Leary submitted that the break and enter fell below the middle of the range of objective seriousness. I agree with them. The crime was not a professional exercise, in fact it was committed by Mr Newton when he had consumed a good amount of alcohol and the crime is more accurately described as opportunistic. The car theft however is in my opinion in the middle of the range of objective seriousness, that is because the car itself was damaged after being stolen. In addition I need to take into account as an aggravating feature of these crimes, the fact that they were committed while Mr Newton was on bail. In other words a magistrate had determined to permit him to remain in the community despite being charged with other offences. Obviously a condition of remaining in the community was that he not commit further offences. He broke that condition and abused the liberty which he had been granted by the court system by taking the opportunity to break into the home of these people and to steal the car. That is regarded by the law as an aggravating feature of his crimes. 10. Mr Leary called his client to give evidence. He acknowledged that he had consumed a bottle of Scotch that night and had no independent recollection of what he had done. When he was told afterwards about his behaviour was, as he described, horrified for reasons which I will refer to shortly. He booked himself into a drug rehabilitation centre for a few days and checked out more long-term arrangements for drug rehabilitation. 11. He acknowledged that the information contained in a psychological report about him was accurate. It was a very comprehensive and helpful psychological report prepared by Jessica Santos and dated 27 April 2009. The psychologist reported what she described as "a highly disruptive developmental history marked by disrupted attachments, a lack of supervision and effective discipline, which was complicated by physical abuse. In addition, Mr Newton described consistent experiences of rejection, and it is likely that all of these issues had a significant impact on his emotional and psycho-social development, leaving Mr Newton an emotionally vulnerable young man, with poorly developed interpersonal skills and ineffectual coping strategies." She quoted him as saying that he had "pretty much brought myself up". There were issues of violence and alcohol with his father and stepfather. He himself commenced using alcohol aged fifteen. He had earlier commenced using cannabis when he was thirteen or fourteen. When he was around twenty-six he tried amphetamines, ecstasy and hallucinogens. When he was thirty he commenced using cocaine moved on to crystal methylamphetamine or "ice" when he was thirty-six. Encouragingly since he has been in custody he has remained abstinent from illegal substances. 12. The psychologist described his transition into adulthood as being marked by homelessness, criminal behaviour and regular admissions into custody. She referred to what Mr Newton himself described as a significant event which affected his earlier efforts to rehabilitate himself from his drug abuse. He was making good progress after he was released from an earlier period of custody when he was the victim of a violent attack which brought about some depression and other post-trauma symptoms. He returned to drugs and alcohol to deal with those symptoms. Hence the psychologist understandably says that his offending behaviour "may be best explained in the context of problematic substance use, and poor emotional coping and interpersonal skills, exacerbated by the stress of the mental health symptoms, and influenced by an overall embittered attitude towards life." 13. The psychologist thought that it was positive that he had remained abstinent from drugs during his last period of twelve months or so in custody, but she added that his "substance abuse is, as yet, untreated and his ability to remain abstinent in the community is untested." She says that given his history of drug use in the past she was concerned that he may relapse and recommence drug and alcohol use in the face of inevitable stressful situations in the future. As such she thought that "ongoing therapeutic support is important" to assist him in maintaining his substance-free state or what she described as "safe substance use levels". She described Mr Newton as being "ambivalent towards this option" and she observed that given his poor response towards prior correctional group programs his future treatment may be better framed in the context of his past mental health and emotional difficulties. 14. Her reference to safe substance use levels was picked up by Ms Bryan in cross-examining Mr Newton. In cross-examination he acknowledged that what he is wanting to do is to maintain safe substance levels. He thought that abstinence was not appropriate because it involved him living like a priest. He also acknowledged in cross-examination that he had poor impulse control when he had been drinking and he had known that when he committed these offences on 8 March 2008. He acknowledged also in cross-examination that he was not "too keen" on counselling. As I said it was a very comprehensive psychological report. 15. Mr Leary invites me to find that his client has a genuine desire for rehabilitation. I do find that he has a genuine desire for rehabilitation because I accept that he has remained drug-free for the last twelve months which no doubt has been a very difficult task. However I also note that he is not enthusiastic about counselling and regards abstinence altogether as not a desirable option for him. He also acknowledges his poor impulse control after alcohol use. I think this must impact on his prospects for rehabilitation which must remain as guarded. On the other hand his remorse does appear to be genuine. 16. As was referred to by the psychologist he has a history of previous criminal behaviour. When he was a child in Western Australia he had a series of convictions or recorded offences in the late nineteen-eighties and earlier nineteen-nineties for breaking and entering and stealing and car theft. He was convicted in Victoria of a property damage offence in 2002. More recently in New South Wales he has a very poor criminal record involving periods in custody but there are no entries for breaking and entering. 17. Mr Leary fixed on the absence of convictions for breaking and entering to argue that the criminal record should not be regarded as an aggravating feature. I should add that it is obvious that his criminal record entitles him to no leniency. The absence of a criminal record or evidence of good behaviour means that an offender may get more leniency from a judge who is sentencing the offender. No such leniency is available to Mr Newton. But I do regard his criminal record as warranting it being important that I take into account the need for deterrence, both personal deterrence and general deterrence. It has to be drawn to his attention by the sentence that he must stop committing crimes within the community and is important for the community's protection that he be stopped from committing these crimes. 18. It is obvious, although I must acknowledge, that the sentences which I impose must be full-time custodial sentences. He has served custody before and these crimes can only be met with sentences of full-time custody. 19. Turning now to the sentences which I regard as appropriate, the maximum for the break and enter is, as I said, fourteen years imprisonment. But this crime is below the middle of the range of objective seriousness. On the other hand it was committed whilst he was on bail and I need to take into account the need for general and specific deterrence. But I also need to make some allowance for the fact that he has demonstrated some remorse and has guarded prospects of rehabilitation. I would regard an initial overall sentence of four years as being an appropriate sentence for the break and enter. 20. The car theft carries a maximum of five years, it is in the middle of the range of objective seriousness, was committed on bail and once again I need to bear in mind the need for general and specific deterrence. I regard an overall sentence of two-and-a-half years for the car theft as appropriate. 21. But as I said earlier, Mr Newton has pleaded guilty to these offences. He is entitled to a discount on the sentences for that plea for the reasons which I have given. Accordingly, the four year sentence I will discount by eighteen per cent to a sentence of thirty-nine months, which is on my calculations a little more than eighteen per cent. As well I will discount the two-and-a-half year sentence by eighteen per cent and reduce it to two years. 22. I have considered the question of whether the sentences should be back-dated or not. Mr Leary argued that the sentences should be back-dated to commence at the same time as the sentences imposed by the magistrate and recently varied by me. Mr Leary argues that the behaviour involved in the breaking and entering and stealing was part of the same criminal escapade which commenced with the fire which he lit earlier in the evening and which the magistrate sentenced him for. Ms Bryan on the other hand argues that the sentences should be completely cumulative and commence at the end of the sentence being served, which was being served for the earlier crimes. She argued that the fire offences were in a domestic context and that there were separate victims for the break and enter and the car theft. She argued again that the magistrate's sentences already involved a degree of leniency. 23. I propose to back-date the sentence for the break and enter modestly to 1 December 2008. I think that Ms Bryan is right in the submissions that she makes. In particular there were quite separate victims to the crimes involved in the break and enter and theft compared to the victims involved earlier in the evening. Nevertheless it was poor behaviour which was no doubt associated with Mr Newton's drinking earlier in the day. I propose to fix the two sentences in a way that they will partly run at the same time but there will be some additional period which will be attributable to the car theft alone because the car theft involved a separate victim to the break and enter. The additional period for the car theft will be three months. 24. I am going to sentence you now Mr Newton, if you would stand up. I convict you of the offence of aggravated break and enter with intent to steal and I set a non-parole period for that sentence of twenty-four months to commence on 1 December 2008 and to expire on 30 November 2010. The balance of the term will be fifteen months to commence on 1 December 2010 and to expire on 29 February 2012. The total sentence is thirty-nine months commencing 1 December 2008 and concluding on 29 February 2012. 25. I convict you of the offence of taking and driving a conveyance without consent. I set a non-parole period for that sentence of eighteen months to commence on 1 September 2009 and to expire on 28 February 2011. The balance of the term will be six months commencing on 1 March 2011 and expiring on 31 August 2011. 26. The total sentence is therefore twenty-four months commencing 1 September 2009 and expiring on 31 August 2011. The total sentence therefore commences on 1 December 2008 and expires on 29 February 2012, a period of thirty-nine months. The effective non-parole period is twenty-seven months from 1 December 2008 until 28 February 2011. That is a small departure from the statutory ratio of seventy-five per cent. Normally a non-parole period should be seventy-five per cent of the overall sentence. The non-parole period is about seventy per cent of the overall sentence. That is because I regard there being special circumstances for that adjustment, namely your need for supervision on your release and rehabilitation. However because of your unsuccessful efforts at rehabilitation in the past I do not regard the special circumstances to be such as to warrant a significant adjustment. I recommend that the psychological reports, a copy of it which is exhibit 3, accompany you into custody with your papers. HIS HONOUR: Okay, Ms Bryan and Mr Leary, I will discharge my statutory duty of explaining the sentence to Mr Newton in a moment but tell me whether there are any errors either in the facts which I have noted in the remarks on sentence or in the figures so far as the mathematics are concerned. LEARY: Your Honour there's just a query on my part. Your Honour commenced the sentence for the break and enter and in effect the whole sentence from 1 December 2008. HIS HONOUR: Correct. LEARY: And your Honour indicated that the reason that your Honour was going to do that was because your Honour was going to modestly backdate it into the appeal sentences. HIS HONOUR: Correct. LEARY: Earlier in your Honour's judgment your Honour indicated that any sentence should date from 23 February 2009. HIS HONOUR: At the latest I said, yes. LEARY: Yes. If I could indicate this, your Honour, I'm not sure where your Honour got that date from but if your Honour got that date from the Crown document which also refers to that date-- HIS HONOUR: Yes. LEARY: --that date follow the decision your Honour made in the appeal-- HIS HONOUR: I see, yes. LEARY: --would be incorrect. Now I don't know if your Honour-- HIS HONOUR: No I hadn't taken that into account, no all right, I see. LEARY: If it was your Honour's intention to give Mr Newton a modest backdate from 23 February to 1 December based on that figure I would be inviting-- HIS HONOUR: No, it was my intention to give him just short of three months. But I'm glad you've drawn that to my attention because I have not factored in too the fact that the date that I had calculated the magistrate's sentences expiring on, namely 23 February 2009-- LEARY: Yes. HIS HONOUR: --will of course now be different as a result of the appeal which I upheld. LEARY: Yes. Your Honour didn't specifically state-- HIS HONOUR: No I didn't, in the appeal. LEARY: --the date that he was eligible for release in the appeal. HIS HONOUR: You're quite right. LEARY: But if it would assist your Honour it flows as a matter of logic from the decision that your Honour made that that date would be 2 January 2009. BRYAN: I agree with my friend, your Honour. HIS HONOUR: All right, so that the date which is 3/3/08 is when they all commence, is that right? LEARY: It is your Honour. BRYAN: Yes your Honour. HIS HONOUR: Just let me get this right. Yes, so the 15 would be 3/3/08 to-- LEARY: 2/6/09. HIS HONOUR: Thanks, 2/6/09 with a non-period of 3/3/08 to 2/1? BRYAN: 2/1 is correct, your Honour, 2/6 is not, it should be 2/4. LEARY: Yes I'm sorry your Honour, 2/4. HIS HONOUR: 2/4? No that's right. LEARY: No, it has to be 6. HIS HONOUR: Yes 6 is right, because it's 15 months. LEARY: Five months. HIS HONOUR: Yes, 15. BRYAN: No, isn't 15 months one year and three months? HIS HONOUR: Yes, so it's 3/3/08 to 3/3/09 is 12 months, yes 2/6/09. BRYAN: I'm sorry. HIS HONOUR: Yes okay. And so the 10 months is 3/3/08 to 2/1/09, do we agree on that? LEARY: We do. HIS HONOUR: The second offence sentence is exactly concurrent and so the two six months ones are 3/3/08 to 2/9/08, is that right? And the three months, 3/3/08 to 2/6/08. That right? LEARY: I'm sorry your Honour. BRYAN: Sorry your Honour, I think I interrupted. HIS HONOUR: No I'm just looking at those other two offences, the drug possession he got six months, so that should be 3/3/08 to 2/9/08. BRYAN: Yes. LEARY: I agree with-- HIS HONOUR: And the possess ammunition he got six months, once again that's the same. BRYAN: Yes your Honour. HIS HONOUR: And for the prohibited weapon he got three months, so that should be 3/3/08 to 2/6/08. BRYAN: Yes your Honour. LEARY: Yes your Honour. FOR JUDGMENT SEE SEPARATE TRANSCRIPT HIS HONOUR: All right, now I'm going to adjust the sentences which I have just imposed. So I had allowed just under three months haven't I as the concurrent portion, is that right? BRYAN: Yes. LEARY: If your Honour was-- BRYAN: I was just working out the easier way is because we adjusted those sentences by one month and 20 days if the easier way to do it was to take off one month and 20 days, it may not be easier. HIS HONOUR: No. Look what I have in mind is just to backdate the sentences to commence on 1 September 08. LEARY: Thank you, your Honour. HIS HONOUR: All right, just let me do those. All right I've got an idea, so you let me know when you have - you tell me when you've done your and I'll tell you what I have in mind. LEARY: Thank you, your Honour. HIS HONOUR: All right, now I have in mind for the break and enter a total sentence commencing 1/9/08 and concluding 30/11/11 so far, that's the total, 39 months. LEARY: Yes your Honour. BRYAN: The total, I'm sorry. HIS HONOUR: Non-parole period 24 months 1/9/08 to 31/8/10. LEARY: Yes. HIS HONOUR: Balance 1/9/10 to 30/11/11. LEARY: Yes. BRYAN: Hmm. HIS HONOUR: Car theft overall sentence 24 months 1/6/09 to 31/5/11. BRYAN: Yes. HIS HONOUR: Non-parole period 1/6/09 to 28/11/10 and balance 1/12/10 to 31/5/11. BRYAN: Just in relation to the non-parole period, it should be 30 days in November your Honour so it should be 30/11/2010. HIS HONOUR: Thank you for that, quite right. So in custody twenty-seven months, whole sentence thirty-nine months. So that the ratio remains the same but he is first eligible for release on 30 November 2010. BRYAN: Yes. HIS HONOUR: You both agree? LEARY: Yes your Honour. HIS HONOUR: All right. Now Mr Newton I apologise for that, I'm sorry. It's a product of being Friday afternoon and I overlooked the fact that I had adjusted my sentences and Mr Leary was on the ball and picked that up so I backdated your sentences by a further three months to take into account the fact that you won your appeal, all right. 27. So for the break and enter you have got thirty-nine months, that is after your plea of guilty has been taken into account, three years and three months is your sentence. It starts on 1 September 2008, part-way through your appeal sentences I have back-dated it, and it will expire on 30 November 2011. Do you understand? OFFENDER: Hmm. 28. Your non-parole period is two years. Once again that starts on 1 September 2008 and finishes on 31 August 2010, for the break and enter. Your sentence for the car theft does not start till June this year and it is two years, it starts on 1 June this year and it expires overall on 31 May 2011. And your non-parole period for the car theft is eighteen months, that starts on 1 June this year and that finishes on 30 November 2010. So the first date that you are eligible for release on parole is 30 November next year, 20 November 2010. Do you understand that? OFFENDER: Yes. 29. You are serving an extra amount for the car theft because that was a different crime with a different victim but most of the sentences overlap. So the first date that you are eligible for release is 30 November next year and your overall sentences expire on 30 November one year after that, 2011, that is when your sentences till finally finish. But you are eligible for parole 30 November next year. Whether you get parole, as you know, is not up to me. I cannot fix parole because the sentence is longer than three years, that is a matter for the Parole Authority. And as you have heard me say I am going to arrange for the psychologist's report to go with your papers. Do you understand that? All right, have a seat. Mr Leary, Ms Bryan is there anything else that I need to attend to? LEARY: I don't believe so. BRYAN: No your Honour. HIS HONOUR: All right thank you, it's now 20 to five, we've had Corrective Services people here, the court officer, my associate and the monitor and I appreciate they had no choice but I appreciate the fact that everybody stayed on so that we can finalise this matter. And what I'm going to do is first thing I'm going to ask my associate to do is just to get - in fact I might do it myself - I have marked that psychologist report in pencil so I'll clear that up so it can be photocopied. LEARY: If it will assist your Honour I can tell your Honour this, that last week you recall I only had an email copy, I've got an original that I can hand up to your Honour now to assist. HIS HONOUR: That will be helpful. So that's an original copy of the exhibit, exhibit 3, that's great. ********** 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.