New South Wales District Court CITATION: R v Crystal MARES; R v Michael MIDDLETON [2007] NSWDC 396 JUDGMENT DATE: 13 December 2007 JURISDICTION: 07/21/1067 District Court of New South Wales JUDGMENT OF: Cogswell SC DCJ DECISION: In relation to Ms Mares - for the aggravated break and enter and commit serious indictable offence a non-parole period of 3 years and a balance of the term of 3 years. For the demanding money with menaces offence a fixed term of 3 years.; In relation to Mr Middleton - for the aggravated entering dwelling offence a non-parole period of 1 year 10 months and a balance of the term of 1 year 2 months. For the stealing property offence a fixed term of 12 months. CATCHWORDS: CRIMINAL LAW - sentence - co-offenders - aggravated break and enter and commit serious indictable offence - demand property in company with menaces - aggravated enter dwelling house with intent to commit serious indictable offence - steal in a dwelling house - Ms Mares knew victim - over 5 month period victim paid Ms Mares money at her request - Ms Mares went to victim's home with 3 men including Mr Middleton - property taken from house - threatened victim to provide money - one man armed with firearm - Ms Mares had paid the men to attend the victim's house with her - offences planned - both offenders have history of drug abuse - both offenders have prior criminal history - pleas of guilty entered at earliest opportunity - offences in middle of the range of objective seriousness - Mr Middleton on parole at time of offences - special circumstances to warrant adjusting of ratio between non-parole period and parole period for both offenders - need for general deterrence LEGISLATION CITED: Crimes Act 1900 s 99(2), s 112(2) Regina PARTIES: Crystal Mares Michael Middleton FILE NUMBER(S): 07/21/1067; 07/21/1068 COUNSEL: Mr DN Shridhar for Ms Mares Ms Woodhurst for Mr Middleton SOLICITORS: Ms C Summerfield for the Director of Public Prosecutions JUDGMENT 1. I am sentencing two people who were both involved in crimes which were committed on the night of 10 and 11 July 2006. 2. Crystal Mares is charged with aggravated break and enter and commit a serious indictable offence - larceny - on 10 July 2006. The aggravation is that she was in company at the time. She is also charged with demanding property in company with menaces with intent to steal on the same date. The first offence is against s 112(2) of the Crimes Act 1900. The second offence is against s 99(2) of the Crimes Act. 3. Arising out of the same circumstances Mr Michael Middleton was charged with aggravated enter a dwelling house with intent to commit a serious indictable offence, namely demanding property with menaces and with stealing in a dwelling house. The first is an offence against s 111(2) of the Crimes Act. The second is an offence against s 148 of the Crimes Act. 4. Briefly what happened is this. Ms Mares met the victim of this offence, a man named Terrence O'Sullivan, in January 2006. Over the next four or five months they saw one another. During that period of time Mr O'Sullivan paid Ms Mares a large sum of money, paid over various stages and all at her request. 5. On the night of 10 July 2006 Mr O'Sullivan got home from work. He received a phone call from Ms Mares. She asked if he was home and he said that he was. She said that she would come to his address in Emu Plains. A short time later he heard a knock on his front door. He began to turn the lock when the door was pushed open causing him to stumble backwards. 6. Three men entered his premises with Ms Mares behind them. She said to him "I'm angry with you". She said to the men to take whatever they wanted. She said to Mr O'Sullivan "You know what I want, I want money". The three men began to ransack the place. They took a picnic table, a whipper snipper, a vacuum cleaner, a television, drinks, a DVD player and DVDs and money. They took them out to a four-wheel drive which was waiting outside. 7. Ms Mares then said to Mr O'Sullivan "I want $20,000 and I want it by Wednesday". The day that she said it was a Monday. She said she didn't want to hear the wrong answer. She said "I have got two car loads of people at your mother's place, do you want me to send them in and shoot your mother now?" She repeated that she wanted the $20,000 by Wednesday and did not care how and where he got it. She warned him away from reporting the matter to the police. 8. The four then left the premises. One of the three men was Ms Mares' co-offender Michael Middleton. 9. Mr O'Sullivan, very sensibly went to get his mother and they both reported the matter to the police. 10. Ms Mares was interviewed after being arrested on 11 July 2006. She admitted to the offences. She said she'd organised the men to attend in order to obtain the money from Mr O'Sullivan. She said that on the way she became aware that one of the men was armed with a firearm. She saw the gun. She had offered to pay each man a $1,000 to act as physical support for her demands. 11. Mr Middleton was not located as quickly. Police used investigative methods involving his mobile phone and a DNA profile and eventually located him on 21 December 2006. He voluntarily attended the police station on 22 December 2006 where he was arrested. He also was interviewed. He said he was contacted by Ms Mares who asked that he help recover money. He was to provide a presence to intimidate the proposed victim. He said that he had guarded the victim whilst the other men ransacked his home. He made sure the victim did not move. 12. That is a bare outline of the events which led to Ms Mares being charged with her two crimes and Mr Middleton being charged with his two crimes. In order to proceed with sentencing both of them I need to consider their roles separately. I first consider Ms Mares. 13. I make reference to two general headings. The first is that I consider the general seriousness of the crimes which she has committed. The second heading is that I consider her own personal circumstances. 14. Looking first at the general seriousness of the crimes which she has committed, the starting point is always the penalty which is attached to crimes by Parliament. In this case the more serious offence of aggravated break and enter and commit a serious indictable offence carries a maximum of twenty years imprisonment. Not only that, but Parliament has fixed to that a standard non-parole period of five years. The offence of demanding property in company with menaces with intent to steal carries a maximum of fourteen years imprisonment. In other words both the crimes committed by Ms Mares are clearly regarded by Parliament as very serious offences and for good reason. 15. The second factor which I take into account in assessing how serious these crimes were are whether it was planned and organised or whether it was spontaneous. In this case the evidence leaves me in no doubt that it was planned and organised. Ms Mares had known the victim for some months. The plan itself may have been of short duration - perhaps a matter of hours or a day or so - but in that time she organised support and made contact with the victim. She had transport and turned up at his house. 16. The next factor which I will take into account is that Ms Mares knew that one of the men had a firearm. I accept the submissions of Mr Shridhar that the source of that information came entirely from his client. The victim at no stage was shown the firearm. It was not brandished in his presence. That would have been more serious. Nevertheless it is, in my opinion, a significantly aggravating feature that Ms Mares was prepared to undertake this exercise knowing that one of the men was armed. It considerably heightened the risk of very serious injury or death occurring as a possibility. It was a very dangerous thing to do. It aggravates the offence. 17. I take into account the fact that Ms Mares knew that the person whose house she was breaking and entering and from which she was stealing was at home at the time. I do not regard that as aggravating had the victim not been on notice. As Mr Shridhar said, the purpose of the exercise was to confront Mr O'Sullivan and to demand money from him. In a sense the criminality in that behaviour is captured by the offence of demanding money with menaces. 18. Ms Mares has a history of drug abuse. I will refer to that again but I mention it at this stage because whilst being a drug addict does not excuse or provide a defence for crimes, it may explain crimes and may make them less serious because they are more impulsive. I do not think in this case that Ms Mares' drug addiction has that impact. I accept the submissions of Ms Summerfield for the prosecution that the degree of planning in this case is inconsistent with a significant impact on the objective seriousness of the offence brought about by the drug addiction. 19. I take into account the nature of the property stolen. It could have been a lot worse but no doubt for Mr O'Sullivan it was a very aggravating and annoying experience and I am here referring simply to the fact that he was deprived of his property. The experience overall must have been shocking for him. 20. I also take into account, as Ms Summerfield says, that the purpose of sentencing of deterring other people from committing these crimes is important in a case such as this. There are instances of home invasion which occur in Sydney and it is important that sentences deter people from undertaking this sort of crime. 21. I turn now to Ms Mares' personal considerations. She pleaded guilty at the earliest opportunity. Ms Summerfield concedes as much. She has a criminal record. The criminal record contains crimes such as assault and maliciously damaging property as well as larceny and entering a building. This criminal record means that Ms Mares does not have the benefit, which other people might have, of being able to claim that she is of good character or has committed an offence or offences for the first time. It deprives her of that benefit. 22. She was born on 17 June 1985. She was twenty-one when these offences occurred and is twenty-two now. I have read her pre-sentence report which became exhibit C. It records that she has had a good relationship with her sister and mother but that she was raised in an environment of violence due to alcohol abuse within the family. She left school at fourteen and did not do any further education for the workforce. She has been employed sporadically. 23. She commenced on alcohol and cannabis during early adolescence. She started using heroin at the age of fifteen and later started using methylamphetamines. She had not, at the time of the report, completed any drug counselling or intervention. She also gambles to unhealthy extent. She has been diagnosed with bipolar disorder and takes medication. 24. She was referred to a drug and alcohol program in custody but withdrew after a day and she has two internal charges to do with possessing prohibited goods and failing to supply a urine sample. 25. There is a report by Dr Nielssen dated 26 November 2006 concerning Ms Mares. Dr Nielssen is a psychiatrist. He diagnoses substance dependence and abuse as well as a substance-induced psychotic state and what he describes as an unstable personality. He said that at the time of the offences she was in a disturbed state of mind as a result of a combination of drug use and disorganised thinking. As I said, I do not regard the impact of that as very significant on the seriousness of the crime because she was clearly able to plan and organise its execution. 26. She was also seen by a psychologist Mr W John Taylor. Mr Taylor assessed a moderate risk of recidivism. He said that her rehabilitation would depend heavily on the measures that can be undertaken to address her needs. He said that she will need considerable support as well as ongoing psychological treatment when she has been released from prison. He thought that she would need to receive treatment for at least a couple of years. 27. She has demonstrated some contrition in confessing to her crimes although the Crown case against her, it seems, must have been fairly strong since she knew the victim, although her confession itself needs to be taken into account. 28. Because of the standard non-parole period attached to the principal offence that she has been charged with I need to ask myself the question: are there reasons for not imposing the standard non-parole period? In this case the standard non-parole period is five years. In answering the question I consider the objective seriousness of the offence, that is how serious the crime is, as well as circumstances of aggravation. 29. I have considered those matters. I regard this case as being comfortably in the middle range of objective seriousness. That is because of, in particular, the knowledge of the weapon and the degree of planning. The degree of planning is probably the more prominent feature which puts it into the middle of the range of objective seriousness. 30. However there is, or remains, a reason for not imposing the standard non-parole period. That is because the standard non-parole period is a starting point for a conviction after a trial. In this case Ms Mares pleaded guilty; she is entitled to a discount for that. That is a reason for departing from the standard non-parole period and I will take that into account in due course. 31. The final matter which I consider concerning Ms Mares is whether there are special circumstances which will justify adjusting the proportion between the non-parole period and the parole period of her sentence. I think there are special circumstances. There are three: this is her first time in custody, she is aged twenty-two and she needs a good deal of supervision in the community to encourage her rehabilitation. 32. I will now turn to Mr Middleton's behaviour. Once again I consider the seriousness of his crimes and then I will consider personal considerations. 33. The seriousness of his crimes are indicated at first, as I said previously, by the maximum penalties which are attached to the aggravated entering in company. Parliament has fixed a maximum of fourteen years imprisonment. To the stealing in a dwelling house Parliament has fixed a maximum of seven years imprisonment. It can be immediately seen, for example, that his crimes are regarded by Parliament as less serious than Ms Mares' crimes. 34. I regard the crimes committed by Mr Middleton as being planned. He was not the initiator of the plan but nor was it a spontaneous crime committed on the spur of the moment. He was recruited by Ms Mares and agreed to participate knowing that his role would be to provide physical intimidation. He was there, as he said, for "show". 35. I take into account that he knew that the victim was at home at the time although that of course was the very purpose for him participating in the criminal activity. 36. Perhaps most significant is the fact that Mr Middleton was on parole when he committed these offences. He had been released to parole about a month before these crimes. When people are paroled or granted bail the criminal justice system allows them liberty to go into the community. It does this at some risk to the community because people on parole or on bail may commit further offences. When they do then they abuse the trust which was granted to them. It is regarded by the authorities as a significantly aggravating feature and I also regard it as such. 37. I also take into account the need for the sentence to reflect a general deterrence to prevent other people from committing similar crimes. 38. Mr Middleton also pleaded guilty at the earliest opportunity. He also has a criminal record which includes offences such as larceny and assault and stealing from the person. That, like for Ms Mares, means that he does not have the benefit of a clean slate, so to speak; he does not receive any mitigation or discount because of a good record. 39. His prospects of rehabilitation must be guarded. His pre-sentence report points out that he has no social support network in the community. He has a six year old daughter who lives in the Northern Territory with her mother. His longest period of employment, since leaving school, was for a couple of weeks as a tyre fitter. He has been diagnosed with schizophrenia and has medication. 40. He has a long history of drug abuse which includes cannabis, heroin and amphetamines. This dates back to his early teenage years. 41. The pre-sentence report notes that he seems enthusiastic about making a positive lifestyle change but guardedly also notes that that is yet to be tested. It thought he was unlikely to benefit from supervision because of a history of not adhering to instruction and guidance from the Probation and Parole Service. 42. He too has been assessed by a psychologist. Ms Anita Duffy assessed him. She recorded a history of an unstable home life and also a period, during his childhood, when he became the victim of unwanted attention by older men who preyed on him and other young boys. Ms Duffy thought that Mr Middleton needed continued monitoring of his psychiatric condition and his medication. She noted that he was unwilling to enter into any counselling programs to address his personal issues. 43. Mr Middleton was assessed by a psychiatrist, Dr Rosalie Wilcox. She reported on 7 November 2007. She diagnosed paranoid schizophrenia and poly-substance abuse as well as an anti-social personality disorder. She noted that he had expressed considerable remorse and had taken responsibility for his actions by pleading guilty. She noted a motivation to make significant changes to his life and expressed a desire to participate in long-term drug rehabilitation. She noted that he knew that unless he maintains abstinence from drugs he would have difficulty gaining access to and becoming reunited with his daughter. 44. It seems therefore that the prospects of his rehabilitation are not clear. There has been some improvement in his motivation in recent months and I take that into account. 45. Finally for Mr Middleton I am invited by Ms Woodhurst to find that there are special circumstances in his case which would warrant the adjustment of the ratio. She points to his mental health issues and the need for rehabilitation focusing on the difficulty which he experienced in his upbringing. 46. Ms Summerfield submits that he has had opportunities in the past for rehabilitation which he has not taken and that the indications are not positive for rehabilitation, that he is not motivated. 47. I do propose to adjust the ratio because of the recent expressions of motivation, although I do not propose to adjust the ratio as significantly as I will for Ms Mares. 48. I take into account that he has demonstrated contrition. He has been in custody since 22 December 2006. 49. In each case of Mr Middleton and Ms Mares there is a possibility, because they are both in protective custody, that there might be some restriction on their ability to participate in courses although the evidence is not strong. 50. In the case of Ms Mares, as I say I regard her case as being in the middle of the range of objective seriousness. Were her case to have been a conviction or a verdict following a trial it would attract the standard non-parole period of five years but she has pleaded guilty and is entitled to a discount because of that plea. That is a reason for departing from the standard non-parole period. I would regard an appropriate discount as the maximum of twenty-five percent which would bring her non-parole period down to the region of about three and three quarter years. 51. As a result of the special circumstances, on one view of things I might further reduce that non-parole period although I am wary of not reducing it too much. The reason for that is that the standard non-parole period must remain as a guidepost or indicator as to how serious the legislature regards this penalty. 52. In the end I have determined to fix a non-parole period for Ms Mares of three years. It will commence on the date of her arrest of 11 July 2006 and expire on 10 July 2009. I have decided to fix an overall sentence of six years. The parole period of three years therefore reflects a significant adjustment in her favour. I have deliberately allowed a period of three years parole for her to take the most advantage of opportunities for her rehabilitation. 53. As for the demand money with menaces I will fix a sentence that is concurrent with the sentence I have just fixed because it arose out of the same circumstances and was part of the same criminal episode. I regard a sentence of three years as appropriate. I will not fix a non-parole period because that sentence will be the same length as the non-parole period for the other sentence. 54. Turning now to Mr Middleton's case I regard an appropriate sentence for his aggravated entry in a dwelling with intent as three years. I will fix a non-parole period of one year and ten months. The balance of the term is therefore one year and two months. Once again I have exercised my discretion, having found special circumstances, to adjust the proportion between the non-parole period and the balance of the term. 55. For the offence of stealing property in a dwelling I fix a penalty of twelve months. Each of those sentences will date from 22 December 2006. 56. So I will now formally sentence you. Ms Mares, if you would stand up. Ms Mares, for the aggravated break and enter and commit a serious indictable offence I sentence you to six years imprisonment. That will date from 11 July 2006 and expire on 10 July 2012. I fix a non-parole period of three years. That starts on 11 July 2006, when you were arrested and will expire on 10 July 2009. I fix a balance of the term of three years. That commences on 11 July 2009 and expires on 10 July 2012. 57. For the offence of demanding money with menaces I set a fixed term of three years commencing 11 July 2006 and expiring on 10 July 2009. You can have a seat. 58. Mr Middleton, for the offence of aggravated entering of building with intent I sentence you to imprisonment for three years. That is to commence on 22 December 2006 and expire on 21 December 2009. I fix a non-parole period of one year and ten months. That is to commence on 22 December 2006 and to expire on 21 October 2008. I fix a balance of the term of one year and two months to commence on 22 October 2008 and to expire on 21 December 2009. 59. For the offence of stealing property in a dwelling I sentence you to twelve months imprisonment to commence on 22 December 2006 and to expire on 21 December 2007. If you would have a seat. 60. In Mr Middleton's case I order that Mr Middleton be released on parole on 21 October 2008. I fix the following conditions of his parole: he is to appear in court when called upon to do so, he is notify the court of any change of his address, he is to be of good behaviour and he is to accept all reasonable directions and recommendations of the Probation and Parole Service. HIS HONOUR: Now, in a moment I will, in compliance with s 48, make sure that each of the offenders understands the sentence but before I do that are there any orders which I haven't made and ought to make, Ms Summerfield? SUMMERFIELD: Not that I believe your Honour. HIS HONOUR: Yes there are? SUMMERFIELD: There are no further orders your Honour. HIS HONOUR: Okay. Now Ms Woodhurst? WOODHURST: None your Honour. HIS HONOUR: And Mr Shridhar? SHRIDHAR: No your Honour. 61. Now Ms Mares, for the more serious crime - I've got to make sure you understand your sentence because I know it's difficult following all that. Perhaps it is. I've given you six years for the major crime. I have divided that in half. Your non-parole period is three years, you've got the benefit of - normally it would be three quarters of six years but I've given you half of six years because I've accepted what Mr Shridhar says about that. You have got to serve your gaol sentence from 11 July 06, when you were arrested halfway through last year and your minimum of three years expires on 10 July 2009, so you're about halfway through it and you'll be eligible for parole on 10 July 2009. Whether you get it or not depends on the Parole Authority. They have to be satisfied that you can be released. It's up to them not to me. Once you are released on parole you've got a balance of the sentence of another three years and that expires on 10 July 2012 so your overall sentence is six, half in gaol and half in out provided you get parole from the Parole Authority. For the other one, demand money I have just fixed a sentence of three years to date from July last year which will finish at the same time as you become eligible for parole on the first one. Do you understand that? OFFENDER MARES: Yes sir. 62. Now Mr Middleton, your case is different. Your crimes were less serious as I said and I've given you an overall sentence of three years. That also dates from when you were arrested, in your case on 22 July (as said) 2006. I have given you a minimum time that you have to serve in gaol of one year and ten months, that is 22 months. That starts on 22 December 2006 and you will be paroled on 21 October 2008 so 21 October next year you will be paroled. Because your sentence is three years or less, three years in your case, I am the one who orders parole not the Parole Authority so I have ordered parole for you and you will be paroled on 21 October 2008. But once you are paroled you've still got the rest of your sentence to serve, one year and two months. You'll be in the community but if you misbehave then you're back in, as you well know, and you serve out the balance of the parole. For the other one, stealing of property, I've just fixed 12 months to date from when you were arrested and that will expire in a week or two's time. I fixed parole conditions for you. You've got to behave yourself, you've got to tell the court of changes of address, you've got to come to court if you're ordered to and perhaps, most importantly, you've got to accept reasonable recommendations for your rehabilitation from the Probation Service and that's to help you get back on track. Do you understand those orders? OFFENDER MIDDLETON: Yes I do, thank you very much. HIS HONOUR: Is there anything else, Mr Shridhar? SHRIDHAR: No your Honour. HIS HONOUR: Anything else, Ms Woodhurst? WOODHURST: Nothing further. HIS HONOUR: And Ms Summerfield? SUMMERFIELD: No your Honour. HIS HONOUR: Can I thank you all for your assistance, the legal practitioners and I acknowledge that it's late, it's 25 to 5 so I thank the staff who have stayed on for this. ********** 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.