New South Wales District Court CITATION: R v McGaughey [2006] NSWDC 186 HEARING DATE(S): 07/12/06 JUDGMENT DATE: 8 December 2006 JURISDICTION: Criminal JUDGMENT OF: Norrish QC DCJ DECISION: See para 31. CATCHWORDS: Crimial Law - Sentencing - aggravated break enter and steal - plea of guilty - standard non-parole. LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 R v Thomson & Houlton (2000) 49 NSWLR 383 CASES CITED: R v Sharma (2002) NSWLR 300 R v Way [2004] NSWCCA 131 PARTIES: Regina Jason Gary McGaughey FILE NUMBER(S): 06/11/0812 SOLICITORS: Ms S Goodwin - DPP - Crown Mr D Cohen - David A Cohen & Co - Offender SENTENCE 1 HIS HONOUR: Jason Gary McGaughey appears today for sentence in relation to an offence of aggravated breaking, entering and stealing committed on 22 November 2005 at Meadowbank in circumstances of aggravation pleaded in the charge to which he has entered a plea of guilty. The circumstances of aggravation are that he was in company with other persons, namely Mark Lesley, Corey Alford-Debus, and Richard Johnson. The offence was committed on 22 November 2005. It is an offence that carries a maximum penalty of twenty years imprisonment pursuant to s 112(2) Crimes Act 1900. It is an offence for which there is a standard non-parole period, that is a standard non-parole period of five years pursuant to the provisions of Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act particularly s 54D. 2 The facts in relation to the matter are set out in an agreed Statement of Facts and I need not recount them in detail. Some of the detail in that Statement of Facts appear not to specifically involve matters relating to this particular prisoner. In summary what happened was that during the night of 22 November 2005 the Meadowbank convenience store was broken into and the evidence reveals it was broken into and entered by four men including the prisoner, the other three being the named persons referred to earlier. They triggered the alarm at about 12.40am on 22 November and forced open a metal roller door to do so. It would appear on the facts available to me that bolt cutters were used as well to break particular padlocks or locks. The prisoners forced their way in to the cash box of an ATM that was located at the convenience store and the sum of $3100 was stolen from the cash box. Twenty dollars was left behind. 3 The agreed Statement of Facts sets out in considerable detail matters relating to the circumstances in which the prisoner became involved in this matter. The Crown conceded in the course of submissions that the prisoner was not a ringleader and in fact it is clear on the agreed Statement of Facts that the prisoner came into this criminal enterprise at a relatively late stage. For example at 2.30pm on 21 November 2005 the three co-accused, that is Lesley, Alford-Debus and Johnson, were captured on closed circuit television conducting what could be called a reconnoitre of the scene of the crime. The crown case is that at 11.30pm on 21 November 2005 the prisoner attended upon premises at Concord West which were apparently under the surveillance of New South Wales police and there saw Alford-Debus, Lesley and Johnson. There were in the next period of time some various discussions which have assisted police to identify Mr McGaughey as one of those involved. 4 I particularly note that the co-accused Alford-Debus has indicated that he is prepared to assist the prosecuting authority and that the information he has given is corroborated by police surveillance, observations and recordings of intercepted conversations. His version confirms the fact that the prisoner became involved at a late stage, indicating, that the three co-accused as I might describe them, decided, after various discussions, that they needed someone else to assist them. They tried to get another person to get involved and eventually the prisoner was approached and asked if he would join them and he agreed. 5 In any event the prisoner played an active role in the commission of the principal offence but was not one of the principal planners and it would appear quite clear on the agreed facts would not have become involved in this matter unless approached by one or other of his co-accused. 6 The crime obviously involved considerable planning although the planning was primarily conducted by the others, and the offenders came to the scene of the crime in some state of preparedness. Reference is made to possession of latex gloves, obviously to prevent fingerprints being left, and of course I have referred to the fact that bolt cutters were used to break at least one of the padlocks that prevented entry. Ironically as it transpired, the police were able to identify one of the co-offenders from, as I understand it, a DNA profile developed from an examination of one of the latex gloves that had been used by one of the offenders. 7 I must say in passing I find it difficult to understand, given that this crime was committed under some form of police surveillance, that there was not some intervention by police to arrest the offenders, either at the scene of the crime or shortly afterwards. I have been given some information from the bar table about that matter but that information does not explain to me fully, with no disrespect to the Crown Prosecutor of course, for she is captive to her instructions, exactly why police, knowing that these persons were persons who may be about to commit a crime, did not intercept them at some stage at least after the crime was committed. I have already mentioned the fact that the three co-accused were under some form of surveillance and there were listening devices in place, albeit it may not have been for some period of time before the tapes were analysed. 8 The crime involved destruction of the ATM machine, or at least substantial damage to it. I understand no claim for compensation is made in relation to that matter because the machine was insured. However that does not detract from the seriousness of the situation where substantial damage is done. Also, there was forced entry to the premises. The $3100 that was stolen and I assume shared by the offenders, in which divisions I do not know, belonged however to the owners of the convenience store who were modest merchants. They seek compensation and compensation will be awarded to them today. I propose, as is accepted by counsel for the accused, to order that the prisoner pay the compensation although all of the co-offenders would be, I would have thought, jointly and severally, liable. 9 The situation in relation to the co-offenders is that none of the other three persons has been sentenced as I am informed. Two of the co-offenders are before the Magistrate's Court for committal proceedings. Mr Alford-Debus has offered assistance but is yet to be sentenced in relation to the matter. I am therefore required to sentence this offender, who on the objective facts, is the least culpable because of his late involvement in this matter, in a vacuum so to speak, so far as any relevant sentences have been passed upon co-accused. 10 That having been noted, I also place on the record that I have been informed that one of the difficulties in this particular matter is that the co-accused are charged with other offences of a like nature. It would appear that New South Wales police were involved in a significant operation to try and quell the large number of ATM ram raids, as I might call them, or forced entries to ATMs. There is no suggestion that the prisoner was involved in any of these other offences. The co-accused thus when convicted, or if convicted, will face sentence as I understand it in relation to matters beyond the particular matter with which I am concerned. 11 The fact that this was a significant operation is possibly an explanation for the police failing to intervene on this particular occasion or seek to arrest this accused and the co-accused shortly after the offence. I can understand, without having any further details, that there might be proper operational reasons for not interfering. The reason I raise the issue with the Crown directly is not with any sense of outrage in relation to police operational decisions but in the context of understanding that because the accused and his co-accused were not arrested promptly the $3100 belonging to the merchants was in fact lost, because I understand each of the offenders spent their share. 12 Had the four persons been arrested promptly it may have been that some of the money at least may have been recovered. Such is not the case. As I said my remarks should not be taken as criticism of police operational decisions. I am in no position to second-guess the police, but it seems to me that there was an opportunity for this prisoner and the co-accused to be arrested more promptly than occurred. 13 This prisoner was in fact arrested on 23 February 2006. Apparently the police began arresting the co-accused some date late in November 2005. The prisoner has been in custody since 23 February 2006 and thus any sentence I impose upon him will date from that date. Before I leave the objective circumstances of this offence, noting the substantial damage and loss caused by the prisoner and his co-accused, noting the prisoner's lesser role in the commission of the offence, although his active participation in giving it effect, it should be pointed out that crimes involving the destruction or damage to ATMs and the theft of money from ATMs are becoming far too frequent. There are of course far more significant crimes of this character and far more numerous crimes of this character being committed by particular individuals and it would seem that the prisoner's co-accused may fit within that category. But it should be pointed out there is a need in relation to offences of this type to impart some aspects of general deterrence into any order that is made. It is a case, notwithstanding any particular subjective circumstances favourable to the prisoner that might mitigate the otherwise appropriate sentence, where a custodial sentence is clearly appropriate including a non-parole period that would require the prisoner to serve a further time in custody. 14 So far as any general deterrence message that might be imparted through this prisoner I bear in mind that he may not be as appropriate a medium for that message as his co-accused will be in due course, should they come to be sentenced for multiple offences of this type. In relation to his subjective circumstances I note he was twenty years of age at the time. He did not have a substantial criminal history. He certainly had no prior convictions for breaking, entering and stealing and there is no suggestion that he was a person professionally involved in the commission of such offences. He was convicted in November 2003 for malicious damage to property for which he was fined $500. I take it at that relevant time he was eighteen years of age. He was convicted on 19 January 2005 of larceny and in the Local Court placed on a bond to be of good behaviour for twelve months. He was also convicted of what is described as shoplifting and common assault on 9 August 2005 at Burwood Local Court and again given the benefit of a bond pursuant to s 9 Crimes (Sentencing Procedure) Act for a period of twelve months with various conditions including recommendations that he receive counselling, education, and assistance in relation to drug and alcohol rehabilitation and that he be subject to the supervision of the Probation and Parole Service. 15 Obviously the supervision given to him by the Probation and Parole Service was not having any effect upon him in November 2005. On the other hand, as I have pointed out in my summary of the facts, he was invited into this criminal enterprise in circumstances to some extent beyond his control, because his co-offenders could not find someone else that they wanted to assist them to commit the crime. 16 It is to be noted however that the prisoner, as I have pointed out, was at the time of the commission of this offence, subject to three good behaviour bonds, two granted in August and the other granted in January 2005. This is of course an aggravating factor, even making allowance of the absence of a criminal history suggesting ingrained anti-social attitudes. This aggravating factor alone is one that in the context of the objective facts warrants the imposition of a term of imprisonment. 17 In respect of the prisoner I have not had any evidence from him and I have had no evidence from his family. I make no criticism of the conduct of the case by his counsel because his counsel has conducted the case in his usual elegant and succinct way. However there is material in a Probation and Parole Service report that suggests that he has had dysfunctional upbringing, highlighted by separation of his parents at an early age, tensions between his mother, and his mother's new partner, and his father who apparently suffers from alcoholism or has in the past. It would seem on the material available to me, although emerging implicitly, that his father in recent years has got his act together. I note his father now has regular employment and a reference is tendered from his father's employer offering the prisoner employment on his release in a dry-cleaning business at Five Dock, and I have taken that matter into account. 18 The prisoner had problems at school and apparently had particularly disciplinary problems at school. He smoked cannabis in his early teens, he was suspended from school for fighting and he left school at the end of year eight. The Probation and Parole report states, having interviewed both the prisoner, the prisoner's father and the prisoner's prospective employer, that the prisoner's life, up until the present time, has been marked by homelessness, and a lack of parental or other support. I note this as being evidence of the fact that he has had a very disadvantaged upbringing, which may explain the circumstances in which he came in contact with these other offenders of a similar age. 19 The prisoner is an insulin-dependent diabetic, and his diabetes situation may well have been aggravated by his lifestyle. He does have some problems with alcohol at the present time, although it could not be seriously suggested that he is an alcoholic, nor is it seriously suggested that he is a person who has a major problem with prohibited drugs. It would seem on the evidence available to me, limited though it is, the prisoner's involvement in the commission of this offence was prompted solely by the attraction of obtaining what might be described as easy money. 20 There is no suggestion in the evidence that the prisoner was himself a professional burglar at the relevant time and that is evidenced by the fact that the car and the tools for the commission of the crime were produced by other persons. The Probation and Parole Service report summarises the matter by stating that the prisoner is a young man with a number of unresolved emotional issues relating to an unstable and troubled family background. He has had difficulty in conforming to discipline and being able to obtain employment and he certainly has been limited by lack of educational opportunity through no fault of his. He has had difficulties in the past in retaining employment and stable accommodation, he is a person who the Probation and Parole Service believes would be suitable for a medium level of intervention by the Service. 21 Before I depart from the subjective circumstances of the prisoner, bearing in mind of course I do not know all the details in relation to the co-accused because they have not been sentenced, I note that one of the offenders charged with this particular matter, but also charged with a number of other offences, was born in January 1981 and thus was on my very rough calculation, four or five years older than the prisoner. He has a lengthy criminal history of crimes of violence and dishonesty. I note the other two offenders were younger than the prisoner and although some of their findings of guilt in the past have been in the Children's Court it could be fairly said that they had somewhat lengthier, but not greatly so, criminal convictions and findings of guilt in the past. 22 In respect of the prisoner's current situation he, as I said, has been in custody. There is no suggestion of any need for protection in his particular case. The plea of guilty was entered at the first reasonable opportunity and thus it is conceded by the crown as I understood it the prisoner is entitled to a discount of twenty-five per cent upon the otherwise appropriate sentence in accordance with the guideline judgment of Thomson and Houlton, later discussed in cases such as Sharma and I propose to grant the prisoner that discount to the sentence. 23 I note in relation to the matter there is a standard non-parole period. The Crown concedes that it is not a matter to be directly considered but to be taken into account in the way suggested in the decision of R v Way, particularly at para 122 of that judgment where the Court of Criminal Appeal discuss the standard non-parole period as a benchmark or a guidepost or some yardstick that may be considered in fixing the appropriate sentence, even where the standard non-parole period is not strictly applicable. 24 What is relevant in this matter to my mind, to the fixing of the non-parole period by consideration of the standard non-parole period are firstly the special circumstances which I will find in favour of the prisoner pursuant to s 44A(2) Crimes (Sentencing Procedure) Act, the disadvantaged upbringing of the prisoner and the lack of entrenched anti-social attitudes evidenced by his criminal history. I have noted of course the aggravating factor of breaches of bonds but he has never previously been in custody before and the criminal history in the circumstances is to be fairly described as modest. 25 In sentencing the prisoner I have taken into account s 3A Crimes (Sentencing Procedure) Act and the various purposes of sentencing therein set out, which all have some relevance here. Whilst the prisoner should be punished and issues of deterrence, both personal and general, are important, I do not believe the community needs protection from the prisoner given all the objective facts and in any event he is of a young age, or comparatively young age, the orders I make will hopefully assist in promoting his rehabilitation, albeit that he will spend more time in custody. 26 I have had regard to s 21A Crimes (Sentencing Procedure) Act and note of course that any aggravating or mitigating factors relevant, and known to the Court, do not require the Court to increase or reduce the sentence for the offence. The Crown in her helpful submissions identified various aggravating factors which I need not go into in detail. Each of her observations in my view were appropriate. 27 The loss and damage was substantial, the offence was a planned offence. I cannot find of course the prisoner was part of organised criminal activity but certainly there was planning involved in this matter albeit much of the planning was done by others. The important aggravating factor as I have already said on two occasions, was that the prisoner was on conditional liberty in relation to other matters. 28 With regard to mitigating factors that I might identify just a this point, I do not conclude that the offence was part of 'organised criminal activity' at least on his part. I note the prisoner does not have a significant record of previous convictions albeit that he was in breach of those good behaviour bonds. I note the plea of guilty which receives a discrete discount. I also note that notwithstanding some troubling aspects of his background, the prior criminal history and the circumstances of this matter, with the offer of employment and some support from his father, which has been missing in the past, the prisoner does have some prospects of rehabilitation. These matters have been taken into account. 29 As I said, I propose to make a finding of special circumstances. In my view there are several matters that militate in favour of that finding and warrant an adjournment of the appropriate non-parole period. Firstly there is the issue of assisting the prisoner to adjust to community living, he having served this term of imprisonment, his first formal term of imprisonment in his life. I appreciate he has probably been in custody before albeit for short periods, but this is the first term of imprisonment imposed on him by a Court as far as I understand it. He will also need assistance in finding employment, in pursuing any educational goals that he may have. He also needs professional assistance and counselling in relation to matters relating to drugs and alcohol use, although they are not significant contributing factors to the commission of this particular crime. 30 I have considered all relevant options. I have noted s 5 Crimes (Sentencing Procedure) Act. It would seem to me that whilst imprisonment is a matter of last resort there can be no doubt in this matter all factors considered, that a term of imprisonment is appropriate. Thus, having had regard to everything that has been put to me by both the crown and counsel for the accused for which I am grateful, I will make the following orders. 31 Stand up Mr McGaughey. In relation to the offence for which you have been found guilty you are convicted. You are sentenced to a term of imprisonment consisting of a non-parole period of one year and six months to commence on 23 February 2006 and to expire on 22 August 2007. The balance of the sentence is to expire on 22 February 2009. The total sentence of imprisonment is three years. I have found special circumstances. I direct that you be released on parole at the expiration of the non-parole period, that you be of good behaviour, that you accept the supervision and guidance of the New South Wales Probation and Parole Service throughout the period of parole, and obey all reasonable directions of the officers of that service, especially as to any directions regarding alcohol and drug treatment and counselling, and as to education or work-related programs., suitable for you. Take a seat Mr McGaughey. 32 Madam Crown there was a related charge I believe. That is to be withdrawn and dismissed is that correct? 33 CROWN PROSECUTOR: Yes your Honour that is correct. 34 HIS HONOUR: You withdraw that? 35 CROWN PROSECUTOR: I seek to withdraw the related charge, the carried in conveyance charge. 36 HIS HONOUR: Thank you and there's no objection to that I take it Mr Cohen. That is dismissed. Are there any technical matters from your perspective, or Mr Cohen? Mr McGaughey do you understand the sentence I have imposed? 37 OFFENDER: Yes. 38 HIS HONOUR: There are two reasons why you will go back to gaol I am afraid and spend more time there; one is because you are on a bond, even though you don't have a significant criminal history and I understand that, courts can't tolerate people being given the benefit of a bond and then breaching it in this way and secondly the community is sick and tired of people breaking into ATMs. Now this is not the most substantial ATM crime that I am familiar with and I appreciate it is just one crime and I know how you were drawn into it. The facts are self-evident but nevertheless it's a matter where a term of imprisonment is appropriate. When you are released from gaol you will be subject to parole. If you want to commit more crime your parole will be revoked. Do you understand that? I don't know much about your family history, I have been denied that in a sense because I haven't heard a lot of evidence about it but I hope you will take up the opportunity offered by your father. Is it the fact that your father has overcome his alcoholism or not? 39 OFFENDER: Your Honour I'm not sure. 40 HIS HONOUR: All right anyway thank you very much. Do you want to speak to your client Mr Cohen? 41 COHEN: Yes your Honour. 42 HIS HONOUR: Do you want to speak to him now? 43 COHEN: Thank you your Honour. 44 HIS HONOUR: Yes Mr McGaughey you can go with the officers thank you very much. You are excused Mr Cohen I appreciate you coming at short notice thank you very much. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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