New South Wales District Court CITATION: R v MADDEN [2010] NSWDC 337 HEARING DATE(S): 5 November 2010 EX TEMPORE JUDGMENT DATE : 5 November 2010 JURISDICTION: Criminal JUDGMENT OF: Berman SC DCJ DECISION: Sentenced to imprisonment consisting of a non parole period of two and a half years and a head sentence of four and a half years. The offender is referred to the Drug Court for determination as to his suitability for a compulsory drug treatment order. CATCHWORDS: CRIMINAL LAW - Sentence - Aggravated break, enter and commit serious indictable offence - In company - Larceny CASES CITED: Lowe v R [1984] HCA 46; (1984) 154 CLR 606 PARTIES: The Crown Trent Madden FILE NUMBER(S): 2009/267599 SOLICITORS: Director of Public Prosecutions Aboriginal Legal Services JUDGMENT 1 HIS HONOUR: Trent Madden appears for sentence today after having pleaded guilty at an early stage to an offence of aggravated break and enter and commit a serious indictable offence in company. The offence was committed on 16 March 2008 but Mr Madden only appears for sentence today, 5 November 2010, that delay primarily being due to the length of time between when the Division of Analytical Laboratories received relevant material and when they notified the police of a match between the blood stain they tested and the DNA of this offender. In the meantime the offender had served a sentence for an unrelated matter and had been released only shortly before being arrested for this matter. 2 I have begun these remarks by referring to his circumstances because of the injustice that can be caused to an offender when inadequate resources are provided to the Division of Analytical Laboratories, such that offenders stand to be sentenced for offences they have committed some considerable time before. In some cases, although this is not one of them, offenders are completely different people, having rehabilitated themselves by the time they stand for sentence for an old offence. I have borne in mind to a significant extent that Mr Madden stands for sentence today for an offence committed a fair while ago. 3 As I mentioned that offence was committed on 16 March 2008. On that day, the offender, together with an unknown female companion, smashed their way into the Australia Post office at about 10pm. Whilst inside they removed a large number of items, hard drives, printers, SIM cards, games, as well as a number of tickets to the Royal Easter Show. When police attended they discovered a piece of paper containing a red/brown stain. It was labelled "set up guide" and found behind the counter of the Australia Post office near a security door. It was this item which was later analysed by DAL and the offender's DNA found upon it. It appears that the Crown relied exclusively on that DNA evidence in proving that the offender was one of the two people involved in the offence, with the faces of the people in the CCTV footage obtained from the shop being insufficiently clear to prosecute. As I mentioned the offender pleaded guilty at the earliest opportunity and so the sentence I impose upon him will be twenty-five per cent less than it would otherwise have been. 4 The offender has a significantly lengthy criminal history, although it has to be said for offences less serious than that committed by the offender on 16 March 2008. He comes from a loving and supportive family; he is one of ten children. His mother and father are both in court today, his father having given evidence in support of his son earlier on. Mr Madden was a talented footballer as he was growing up. He went to Cleveland High School where he excelled in football. He was playing alongside Nathan Merritt and other current first grade rugby league players. If he had stayed on the right path it is likely that he, too, would now be playing first grade rugby league. Unfortunately he did not stay on the right path. 5 He left school in Year 10 and began messing and mixing with the wrong crowd. He continued playing rugby league as well as doing a TAFE course, but the partying that came with his rugby league companions led to him drinking a lot of alcohol, and smoking marijuana, smoking heroin until eventually, in more recent times, he began injecting heroin. As might be expected for someone with that history of alcohol and drug abuse he does have a lengthy criminal history, as he obtained money to buy drugs to support his habit. 6 I mentioned before that he comes from a supportive and loving family. His father spoke of the terrible dilemma that he and his wife were in as they saw their son going off the rails. At one stage they thought that perhaps it would be best for their son to actually go to gaol. They even contemplated ringing police themselves in order to bring home to the offender the seriousness of the path that he was heading on. Despite many opportunities and attempts at rehabilitation these have all failed with him returning to illegal drug use and the commission of further crimes. 7 He is now, as his father and he himself recognise, getting too old for behaving like this. He has wasted his life thus far. Not only has he wasted his potential to be a first grade rugby league player but in broader terms, spending as much time as he has in gaol has prevented him having long term meaningful relationships, and prevented him from being a family man, both opportunities which he now wishes to seize, so that he can do much better in the future. 8 It is truly a waste for the offender to have spent more than four years in custody out of the last six years. On the other hand it is important that the offender is punished for what he has done. It is important that he understands through the imposition of a sentence which will personally deter him from further misconduct in the future, that if he is going to continue committing crimes, he is going to continue going to gaol. It is important that the community also understand that those who do the wrong thing, as the offender has done, are significantly punished, so that others in Mr Madden's position will be deterred if they too wish to use drugs and then wish to support their drug habit through the commission of crimes. 9 It is to be noted that this offence carries with it a standard non parole period of five years, nor is it to be overlooked that the maximum penalty for this offence is twenty years imprisonment. This is, as both of those figures indicate, a serious offence. 10 Mr Karim handed to me Judicial Commission statistics regarding the sentences that have been imposed in the District Court for offences of this kind. They revealed some remarkable circumstances. Of 449 people sentenced to imprisonment since the imposition of the standard non parole period for offences of this kind, not a single person has received a non parole period longer than the standard non parole period and only one per cent, five people out of 449, have received the standard non parole period. In part, that may well be due to the circumstance that most of the people dealt with for that offence have been dealt with for aggravated break, enter and steal. The standard non parole period which is of course appropriate to an offence in the middle of the range of objective seriousness, would thus be more likely to be imposed for an offence where the indictable offence committed after breaking and entering is a more serious one. 11 Even with that qualification it is remarkable that the intention of the legislature does not appear to have been met. That said, I must regard the Judicial Commission statistics as providing guidance to me as to the sentence I should impose upon the offender. It was said by the High Court in R v Lowe [1984] HCA 46; (1984) 154 CLR 606 that inconsistency in sentencing is a badge of unfairness and whilst it is commonly thought that the High Court was only speaking about co-offenders in that decision, anyone who reads the case will realise that the High Court was speaking in wider terms. For those reasons, as I have said, I will be guided by the Judicial Commission's statistics despite the remarkable features of them that I have mentioned. 12 It is my task of course to assess the objective seriousness of the offender's misconduct and compare it those offences in the middle of the range of objective seriousness for offences of this type. I have already mentioned that the offence committed after breaking and entering, that is larceny, is less serious than many other indictable offences that can be committed after breaking and entering. I should also say that the circumstance of aggravation relied on by the Crown in this case, that is that the offender is in company, is also one of the less serious circumstances of aggravation covered by the section. On the other hand I do take into account that entry was gained to the shop by the offender smashing the front door and that the quantity of property taken was significant, not so much in dollar terms but in the large number of separate items taken. I therefore find that in objective terms the offence is slightly below the middle of the range of objective seriousness of offences of this type. 13 The offender, clearly wishes to put his life of crime behind him. He told me in evidence today of his goals, one of which is to get an apprenticeship and get a job. He does not want to be doing this in his thirties. He is now twenty-six years of age. He is in a relationship with a young woman, despite him being in custody and his father spoke well of the benefits of the offender being in that relationship. The offender expressed his remorse in evidence and has written a letter to the owner of the post office saying that he is sorry for what he has done. I will accept that the offender is remorseful. I accept that he committed this offence under the influence of drugs and was motivated by the desire to obtain further drugs. The offence was not planned to any great extent, probably because it was committed whilst he was under the influence of drugs. The offender had nothing to cover his hands. He seems to have ignored the CCTV. 14 It was Mr Karim's primary submission that having been in custody for just short of one year I should impose a sentence upon the offender which sees him being released today so that further rehabilitation can take place in the community. I have given anxious consideration as to whether I should do what Mr Karim asks. The primary reasons that I will not do what Mr Karim submitted that I should relate to the length of the standard non parole period and the length of the maximum penalty which the legislature has provided. 15 In view of the offender's continuing attitude of disobedience to the law, in view of the absence of demonstrated rehabilitation, in view of the objective gravity of what he did on this occasion and in view of, as I have just mentioned, the standard non parole period and the maximum penalty of twenty years, a non parole period of less than one year would be significantly and manifestly inadequate. I repeat what I said earlier. The offender needs to be personally deterred from further offences of this kind and to let him out today would be insufficient, in my view, to achieve that objective, let alone the other objectives that I must bear in mind in determining the appropriate sentence for the offender. 16 As I think I mentioned, the offender has much to contribute to society if he can put his life of crime behind him but given the regularity of his offending it is not going to be at all easy and thus personal deterrence plays a significant part. Were I to release the offender today, not only would that be inadequate as I have mentioned, but it would not have the effect of showing the offender what he needs to be shown, that is as he continues to commit offences he will continue to go to gaol for longer and longer periods. 17 I have borne in mind very much Mr Karim's submission there is a risk of the offender becoming institutionalised. That is, unfortunately, a necessary risk that occurs when people commit regular offences. I have borne in mind also that had he been arrested for this offence soon after it was committed he might have served the sentence for this offence concurrently with others he has served in the meantime. One difficulty however with accepting what Mr Karim said about that issue was that I do not know anything about those other offences and so when applying the principle of totality as I must I am hampered by the fact that I know nothing about the other offences for which he was sent to gaol. 18 I have also taken into account, both in finding special circumstances and in determining the length of the head sentence, that the offender has spent a very short time in the community before he was re-arrested on this matter on 30 November 2009 and to a large extent he will be serving sentences in effect cumulatively. 19 For all of those reasons,this is the sentence that I propose to impose. The offender is sentenced to imprisonment. I set a non parole period of two and a half years to date from 30 November 2009. It will expire on 29 May 2012. I set an overall term of four and a half years. The offender is eligible to be released to parole on 29 May 2012. He is referred to the Drug Court for determination as to his suitability for a compulsory drug treatment order. ********** 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.