New South Wales District Court CITATION: R v Christopher Ryan [2007] NSWDC 50 HEARING DATE(S): 07/02/2007 JURISDICTION: Criminal JUDGMENT OF: Nicholson SC DCJ DECISION: S.11 Crimes (Sentencing Procedure) Act bail - 3 months CATCHWORDS: Criminal Law - Sentence - B E & S - smashed bedroom window - house left in disarray - theft greater than $5,000 - most property recovered - 18year old Aboriginal offender - breach of probation - drug issues CASES CITED: De Simoni v The Queen (1981) 147 CLR 383 PARTIES: Regina Christopher Ryan FILE NUMBER(S): 06/21/1205 SOLICITORS: Cr: Mr L Graham - Office of Director of Public Prosecution Def: Mr J Styles - Sydney Regional Aboriginal Corporation Legal Service JUDGMENT 1 Break, Enter and Steal is a crime most frequently committed against working men and women. It is also most frequently committed by men and women who do not work for wages. 2 On Tuesday 28 February 2006 the residents of 17 Irribin Street headed off to work. The last to leave, the male occupant, was gone by 6:45am. At 1.15pm that day he was contacted by police telling him his house had been broken into. He returned to find the rear bedroom window smashed, clothes pulled from the cupboards and drawers, the TV cabinet raided and most of his house upended. Two mountain bikes, costing more than four thousand dollars, were taken. Twenty "Playstation" games and a "Discman" and other property were taken. 3 Christopher Ryan, then aged eighteen and a half, was one of the two persons who broke into and stole from these premises. Today he is to be held accountable for his involvement in this criminal conduct. Facts 4 Two males, including the offender, approached the front door of 17 Irribin Street, knocked on the door to ascertain that no-one was at home. The time was 11.45am. The door being unanswered, the two made their way to the rear of the premises, smashed the rear bedroom window and made their way inside. An alert neighbour notified the police. He also took a number of photographs of the offenders as they decamped from the crime scene. At about 12.05 police spotted both youths in nearby Doonside riding the stolen bikes. Shortly thereafter both youths were arrested. The prompt intervention of the neighbour resulted in the prompt arrest of each offender and, significantly, the recovery of all or most stolen property. It also sends a message to those two offenders, and hopefully others, that the community is not keen to tolerate those who prey upon the property of hardworking men and women. 5 On 28 October 2006 Christopher Ryan was committed to this court for sentence. He has been bail refused since 28 February 2006. On 14 July last year, however, he was sentenced to imprisonment for six months. That was a fixed term for three "Break, Enter and Steal" offences charged against him in September and October of 2005. Those sentences expired on 13 January 2007. 6 The co-offender in the offence with which I am dealing was dealt with in the Children's Court. He received thirty hours community service for this offence. Objective Criminality 7 I turn now to the objective criminality. The offence of breaking and entering is an offence against the property of persons. It differs from "Larceny" in that it also involves the entry into premises, usually through damaged to the property. Anyone in the position of this offender should stop and pause for a moment to understand the significance the law places upon the private homes of individuals. 8 The offence of "Larceny", standing on its own, carries a maximum penalty of five years. If you commit that larceny in somebody's home by breaking and entering the maximum penalty almost triples, it becomes one of fourteen years. The law has always regarded the privacy of a person's home as paramount. Police officers and others who want to go into people's homes say, to search for things, need an order of the court so to do. The Court has always been assiduous in protecting people's homes. 9 The guideline judgment on breaking and entering lists a number of criteria that the Court should have regard to when sentencing for this offence. Against that criteria the following observations can be made - this offence was committed while this offender was on a probation order made by the Children's Court. At the time of his offending he was on this probation order for offences of a similar kind. The offence was not spontaneous. I am satisfied the two youths went to the premises intending to break and enter provided no-one was home. Their arrival at the premises, knocking on the door, making their way to the rear of the house and smashing the window were all contemplated within their plan. The offender was accompanied by another youth. That has not been charged as a feature of aggravation. Had it been incorporated into the charge as, indeed, the prosecution would have been entitled to do, the maximum penalty for the offence would have increased to twenty years with a standard non-parole of five years. 10 Breaking and entering is regarded as offences of a serious nature and the legislature recently has told us that we, in this court, should be increasing the penalties we give for the offence. To get, in effect, four break and enters for an eleven months sentence is not going to happen anymore. 11 There is High Court authority that I cannot punish for an offence that the offender has not been charged with. He has not been charged with being in company. In those circumstances, I do not take into account this, otherwise, aggravating feature (see De Simoni v The Queen (1981) 147 CLR 383. Reference 12 The bedrooms in the property were left in disarray. That state of disarray constitutes an aggravation of the criminality associated with the unlawful entry into the premises. Offenders should understand that people value not only the possessions in their home but the order in their home. When they come into their home and find everything in disarray it is as though they, personally, have been violated. Frequently, people who have had break and enters into their home ultimately end up having to move from their home because they cannot stand the thought of somebody having trampled all over their space. 13 It is argued that this offence was towards the lower end of the range. Given the commission of the offence whilst on conditional liberty, the lack of spontaneity in determining to commit the offence, the disarray left behind and the value of items taken, the offence does not qualify as towards the lower end. However, it does not reach the mid-range of seriousness either. Objectively, it presents greater criminality than the lower end but less than a mid-range of criminality. Subjective features 14 Christopher Ryan is currently aged nineteen and a half. He is a single, indigenous man. Family social dynamics 15 He is reported to have had a difficult, unstable upbringing. His Godmother, Kim Downing, today has told the Court he probably was on the streets from the age of eleven. He has not met his biological father. His primary carers, through childhood and adolescence, have been his mother, his grandmother and Godparents. They have known him since he was six years old. He has been receiving support, whilst in custody, from his girlfriend and, it would seem, also by contact with his mother and Godmother. During his early years with his mother, his stepfather was daily abusing him physically and/or emotionally. By that I mean that both forms of abuse were occurring. This offender is of slight build. His mother was either unable or unwilling to intervene. The mother left her partner and lived with her own mother, the offender's nan. However, he was asked to leave at the age of fifteen because he had been pawning her possessions, I have inferred for the purpose of buying drugs or alcohol. 16 For a while he moved among various acquaintances before seeking assistance from his Godparents. There he lived until his incarceration. How effective that can be, in part, can be assessed by noting his encounters with the criminal justice system commence in October 2004 when he was first charged with break and enter. Since that time there have been seven occasions when he has been charged with committing various offences of dishonesty and/or unlawful entry onto property. 17 The pre-sentence report author, Lisa Prince, tentatively expresses a view that the Godparents provide a more positive, structured and disciplined environment. Having heard from Kim Downing this morning I would agree with that assessment. The problem is that you can lead the horse to water, as they say, but you cannot make it drink. It is a matter of whether the offender is willing to commit to an arrangement where he has to surrender some of his liberties, as-it-were, for the benefit of the association. It is that factor that has caused me to pause before I finalise this matter, I want to see if it works. 18 Living with the Downings, appears to me, to offer him a more inclusive life form or lifestyle. They have taken him fishing in the past and to car races and included him, it seems, within their family structure. 19 On release, the offender says, he would be uncomfortable living with his mother, her new partner and his sister. I doubt that the level of support available there would be adequate to assist his rehabilitation efforts. I can indicate from my experience, that it is tough coming out of prison and settling into a new lifestyle. I do not anticipate it will be easy but you should be able to do it within the three months that I am allowing. 20 The relationship with the girlfriend is one that has been on and off for a four year period. She is a regular consumer of cannabis. It is unlikely he would find a stable environment with her, although she has visited him regularly whilst he has been in custody. Withdrawing from drugs is difficult enough without having to share time and closeness with another person regularly committed to using drugs. Education, skills and employment 21 Christopher Ryan apparently did not enjoy school. He had lost interest in education by year 9. His behaviour at school was disruptive. He truanted often. He was suspended for smoking; whether that was cannabis or just cigarettes is unclear from the material. Ryan has no employment history he can rely on. His legitimate income stream to date appears to have come from Centrelink benefits. He says that he has worked with an uncle and done landscape gardening. If so, it was not regular work but rather itinerant, as best I can gather. He appears to recognise, however, the importance of employment as a means of leading a more productive lifestyle. In that, he is correct and, hopefully, he will gain self-confidence and self-image from employment, not to mention a better income stream. 22 Those oversighting his rehabilitation should focus upon securing, for him, access to the personal support programs offered by the various agencies out there to assist him acquire skills, vocational training and access to employment. He has told the pre-sentence report author he is prepared to co-operate with the employment agencies. He has expressed an interest in car-detailing. It is the kind of work, as does landscape gardening, that offers job satisfaction and reasonable money. It is certainly within his ambit to provide the skills in either of those areas and full-time employment. Health 23 Christopher Ryan presents as a slight but compact young man. So far as one can tell, from physical appearance, he appears to be in good physical health. Mental Health 24 There is no psychological report before the Court. Nor is there any suggestion in the pre-sentence report that there are any mental health issues that have come to the attention of his custodians other than his drug and alcohol issues. Drug and Alcohol 25 Christopher Ryan has an entrenched cannabis problem. He commenced daily smoking of cannabis at the age of fourteen. At some point he was spending a hundred dollars daily on the drug. By sixteen he was also consuming copious quantities of alcohol - a carton of beer every two days. He was a binge drinker. During the period he has resided with his Godparents, there was some abatement of alcohol and cannabis consumption. I am satisfied, however, that it was by no means stifled. It just simply did not reach the height of gross access it had previously been at. Notwithstanding his evidence to the contrary, I am satisfied he has taken opportunities, whilst in custody, to smoke cannabis. Of course the level of consumption, in custody, is unlikely to have been anything like as heavy as he previously reached. The significance is, though, he has not persuaded me he is clean of the drug. There have been three institutional charges. I am satisfied at least two of them reflect cannabis use. He claims to have enrolled in drug programs at John Moroney but was moved to Parramatta Correctional Centre and then to the MRRC. I have looked at his custodial record and he seems to have done a lot of moving around; so it is likely that he has been moved before he had an opportunity to attend the courses. I accept that movement within the prison system often disrupts attendance at programs. I am prepared to accept it did so in his case. Thus, he will be leaving custody without having had access to drug and alcohol counselling. The good news is he wanted to do it. Unfortunately, he did not get it done. It is important, therefore, he attend counselling whilst on the outside. I regard him at serious risk of abusing cannabis upon his release for these reasons - * Prior heavy history of cannabis use continued interest and participation in cannabis smoking whilst in custody * No access to drug program whilst in custody * Girlfriend who is a cannabis user * Other social peers also interested in cannabis use Motivation for Offending 26 The offender has not revealed any particular motive for his offending conduct. The most logical explanation is that the offence was drug related in the sense that he may have been looking for cash or items to pawn for alcohol or drugs. Attitude to Offence 27 The offender entered a plea at the Local Court. I am satisfied his doing so demonstrated a willingness to be held accountable for his offending conduct. I am sure he recognises and accepts the wrongfulness of his criminal behaviour. I am satisfied he recognises his best chance of rehabilitation depends upon drug abstinence and securing employment. That is called insight and it is a good thing. It, of course, is a harder thing to achieve than to know what it is you need to achieve. However, I am unconvinced any of that will impact upon his future activities unless he is well supported outside the prison gate. So while I accept he is contrite, the contrition is not so profound as, on its own, to guarantee a change of conduct. Plea of guilty 28 For reasons referred to above, the offender ought to receive the full discount of twenty-five percent for his plea. Rehabilitation Prospects 29 Christopher Ryan's rehabilitation prospects are, at best, clouded. They are dependent upon the level of support, family, foster family and community agencies and Christopher Ryan's response to them. Contrary to the pre-sentence report, I am concerned with the level of support available to him, not the quality of it. I am impressed with Kim Downing but my concern is whether he will commit to it. 30 No-one was at Court when he was last before the Court. That suggests to me, and there is nothing I have heard from Kim Downing to the contrary, that his support is brittle. She says she is not going to continue in the face of offending conduct. The family otherwise, I think, is also either unable or unwilling to commit. The consequence was he was not supported at Court. Probation and Parole were unable to make contact with his mother. Of six potential numbers available to him on his phonecard, two are taken by his girlfriend, one by his mother and one for the Godparents and one mate. I sense his support base is brittle. 31 I would imagine his best accommodation option may be with his Godparents. I am confirmed in that view from what I heard today. If Probation and Parole or other agencies are ineffective in supporting him with drug and alcohol, vocational and living skill programs, his prospects of re-offending are the greater. 32 He does appear to be in good health and without apparent mental health problems. Both factors are positive rehabilitation indicators. He has expressed a willingness to work and there appear to be two areas - landscape gardening and car-detailing that fall within his current skill base and would provide job satisfaction. There is also a loose possibility of getting labouring work through his Godfather or his Godfather's contacts. His youth is a factor that also suggests rehabilitation is still a viable and important option. Parity with the Co-Offender 33 His co-offender received thirty hours Community Service Order. Both offenders were young. This offender, however, had reached adulthood, his co-offender had not. That entitled the co-offender to the particular benefits Parliament has reserved for offenders who have not yet reached adulthood. In particular, his co-offender was entitled to access to the Children's Court. He was also entitled to be sentenced pursuant to the Children (Criminal Proceedings) Act. That Act provides a far less harsh sentencing regime than this offender is subject to under the provisions of the Crimes (Sentencing Procedure) Act. 34 The young person had what was referred to as "limited antecedents". In fairness, this offender's criminal antecedents are not as extensive as I have seen for some young offenders his age. While parity is not appropriate, for those reasons, some downward thrust of the overall sentence on account of his co-offender's lenient treatment is. Rehabilitation is still the primary aim when sentencing offenders who are on the cusp of adulthood. 35 The sentencing option that I have determined will have particular conditions. It will be a three month option when the final sentence will be finalised. The conditions that I am now enumerating will also be his parole conditions but, for the moment, I am giving him Section 11 bail and these conditions are to be regarded as bail conditions. They are designed to foster Christopher Ryan's rehabilitation. 36 Pursuant to Section 11 of the Crimes Sentencing Procedure Act, I grant the offender bail for a period of three months from today. The bail will be in the following conditions - (1) He is to report to Probation and Parole by 5pm on 9 February 2007 at the Mount Druitt Probation and Parole office. (2) He is to accept supervision and obey all reasonable directions of Probation and Parole and participate in all programs required of him by his case manager. (3) He is to reside with Mr and Mrs Downing at 15 Walshe Grove Bidwill. (4) He is to do all he can to obtain employment and once in employment to maintain it. 37 I forgot to ask him, does he play sports? STYLES: Your Honour, I'm not instructed in that regard. Your Honour, he's shaking his head, not really, not in any-- HIS HONOUR: Because one of the things I would like to do is put him in a sporting team if I can, all right. (5) He is to submit to random drug testing three times monthly for the period of the bail. That is nine test results I want in here in three months' time. Any dirty or negative test result or any failure to attend or any failure to comply with test procedure is to be deemed a breach of the bail and I would want to be notified within twenty-four hours. (6) I commend to the Probation and Parole programs related to drug and alcohol management, vocational assistance and living skills. The bail can be entered downstairs today. 38 Mr Ryan, you are at most risk of blowing this within the next week. If you get out today and you try and chase your mates and have a good time tonight, you probably will blow it straightaway. Do you understand that? OFFENDER: Yes. ********** 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.