New South Wales District Court CITATION: R v Steven Paul HAINES [2009] NSWDC 418 JUDGMENT DATE: 18 November 2009 JURISDICTION: District Court of New South Wales JUDGMENT OF: Cogswell SC DCJ CATCHWORDS: CRIMINAL LAW - sentence - aggravated break and enter and commit serious indictable offence - plea of guilty at earliest opportunity - prior criminal record - offence committed while on bail - pre-sentence report - history of significant drug use - unsuitable for Community Service Order or Periodic Detention Order - keen to rehabilitate - psychological report - offence in lower range of objective seriousness - imprisonment necessary but suspended LEGISLATION CITED: Crimes Act 1900 s 112 Crimes (Sentencing Procedure) Act 1999 s 9, s 12 PARTIES: Regina Steven Paul Haines FILE NUMBER(S): 2008/20482 SOLICITORS: Mr Lee for the Office of the Director of Public Prosecutions (NSW) Ms Cotton for Mr Haines JUDGMENT SENTENCE 1. Steven Paul Haines has been convicted of a very serious offence. He pleaded guilty to the crime called aggravated break and enter and commit serious indictable offence. That is a crime under s 112(2) of the Crimes Act 1900 which is the law in New South Wales. Parliament regards the crime as so serious that it has fixed a maximum sentence of twenty years imprisonment to that crime. Not only that but Parliament has provided that in certain circumstances the standard non-parole period for this crime should be prison for five years. 2. Mr Haines was charged with this offence and pleaded guilty at what is agreed was the earliest available opportunity. I convict him of the offence. 3. It is important in sentencing anyone that the judge sets out just what happened in the crime so that everyone can appreciate how serious the crime is. 4. In this case the crime happened at about twenty to eleven on a Saturday night. It was on 5 July last year. Mr Haines and another man went to the Domayne Department Store in Parramatta Road, Auburn. They drove there in a car which was owned by Mr Haines' mother but to disguise that they changed the number plate. They used a hammer to smash a window and get into the store. Then they helped themselves to a Plasma television and a microwave. They were leaving the store but they were discovered by security. They ran back to the car but it would not start so they left the scene and left their stolen goods behind. Unfortunately for Mr Haines but fortunately for the enforcement of law he left his wallet in his mother's car so police were able to find him from that wallet and from the fact that there was some blood left at the scene which police were able to use to track him down. 5. Mr Haines comes before the court with a criminal record but this is the most serious offence which he has committed. He is now thirty years old and in his past he has committed a drug offence and offences involving receiving stolen goods and having goods in custody. He received penalties from various Local Courts of fines for these offences. 6. Significantly, however, when he committed this offence on 5 July 2008 he was on bail for one of the other offences on his record. He had been charged with goods in custody and being in a stolen car and was on bail on those charges when he committed this crime. 7. There is a pre-sentence report prepared by the Probation and Parole Service about Mr Haines. It contains a certain amount of information including the fact that he is unemployed and has been addicted to heroin. That addiction he has had for some ten years. The probation officer said that there was a significant history of drug use "which appears to be the significant contributing factor to his offending." What the officer said was that although Mr Haines has been treated for his drug dependency, "it appears that he is not addressing them adequately. It is considered that the offender may benefit from more rigorous intervention to enhance his prospects of stability." 8. The officer suggested that he would be suitable for a medium level of supervision by the service and regarded him as unsuitable for either a community service order or a periodic detention order. In a later report the officer still regarded him as unsuitable for both those orders but noted that urinalysis conducted earlier this year did not show any illegal drugs. 9. Mr Haines, through his solicitor Ms Cotton who appears for him today, has written a letter to the judge who will sentence him. He acknowledges frankly the injury which he has caused to the store and indicates that his own mother's house was broken into so that he understands what it must have been like for the staff to discover this break-in or to have been alerted to it. He said that he did the crime "because I was on drugs." He is keen to rehabilitate himself from drugs. 10. He does not have a long work history but has recently been employed by a friend as a handyman, although that employment has now ceased, I am informed, because of a need to assist his former partner with their six year old daughter. 11. Ms Cotton also tendered an extensive report from Peter Champion, a psychologist. He obtained a far more detailed background about Mr Haines including a history of an abusive and traumatic childhood with poly-substance abuse and addiction issues. His unemployment was related to the use of drugs. He thought that Mr Haines was a man of borderline to low/average intelligence but not developmentally disabled. Both parents he noted had a history of alcoholism and Mr Haines' use of illegal drugs commenced, when he was thirteen, with cannabis. He has used at various times heroin, cocaine, ice, amphetamines and alcohol. 12. The psychologist thought that he had not received any significant rehabilitation treatment for his dependency. The psychologist thought the focus of intervention should be on alcohol and drug issues to assist Mr Haines to a consistent pattern of abstinence. In fact Mr Champion thought that if he could continue to control his substance use and return to either employment or some useful occupation and avoid inappropriate associations, then there could be potential for change. However, he regarded the prognosis as guarded. He would recommend an alcohol and drug education program with an alternative of a residential rehabilitation placement if that did not work. 13. Ms Cotton submitted that a bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 would be an appropriate penalty in this case because it would enable Mr Haines to grapple with his addiction but to be monitored at the same time. I do not regard that as a suitable punishment. The reason is the crime itself was too serious but also it was committed whilst Mr Haines was on bail for another offence. This made the circumstances of the crime even more serious but also indicated that he has abused on a previous occasion the opportunity given by a court to be at large in the community. 14. Ms Cotton's alternative submission was for a sentence of imprisonment but one which would be suspended under s 12 of the Crimes (Sentencing Procedure) Act. She pointed out a number of features which were relevant to her submission. One is that the crime was committed almost eighteen months ago. Her client pleaded guilty at the earliest opportunity after he was charged on 2 October 2008 but his case has been not reached twice this year. In the meantime he has been reporting three times a week. She pointed out that there was a significant gap in his offending behaviour between 2001 and 2008 and that the breakdown of the relationship with his daughter's mother may have contributed to the addiction driven offending behaviour on this particular occasion. 15. She argued that the offence itself was at the bottom of the range of objective seriousness for crimes of this kind. She pointed out that it was not planned and involved no vandalism apart from the breaking of the glass. The property was not eventually removed. The premises were not occupied nor was there any evidence of any trauma occasioned to any persons. She argued this crime is a long way from the home invasion type crimes which Parliament had in mind as the more serious examples of behaviour which would be covered by this offence. 16. On the other hand she argued that he has demonstrated some remorse and does not have a significant criminal record and pleaded guilty at the earliest opportunity. A suspended sentence would enable him to be supervised in his rehabilitation. 17. Mr Lee who appears for the Director of Public Prosecutions submitted that a sentence of imprisonment was the only option for this crime. He agreed that the offence in this case was in the lower end of the range of objective seriousness but reminded me that it nevertheless had a fixed standard non-parole period of five years which indicated how serious Parliament saw the offence and should be regarded as a reference point for me. He acknowledged that a suspended sentence would be within the range of options available to me. 18. However before determining whether that is an appropriate sentence, I must determine the sentence which should be imposed in this case. Because the offence was committed on bail, but on the other hand was at the low end of the range of objective seriousness, a submission which I accept, I regard an appropriate penalty as four years imprisonment. 19. However because Mr Haines has pleaded guilty to this crime, I am going to discount that penalty by twenty five per cent to three years imprisonment. I am further going to take into account the fact that he has been not reached twice through the courts and in the meantime has been reporting three times a week. I therefore regard an appropriate overall penalty in this case as two years imprisonment. 20. I propose to accept Ms Cotton's submission that that sentence of imprisonment should be suspended for the reasons which she advanced. 21. I convict you of the crime of aggravated break and enter and commit serious indictable offence. For that crime I impose a sentence of two years imprisonment and I make an order under s 12 of the Crimes (Sentencing Procedure) Act 1999 suspending the execution of the whole of the sentence for the whole of the period. Furthermore I direct that you be released from custody on condition that you enter into a good behaviour bond for the period of two years. Now the terms of the bond Ms Cotton, Mr Lee: supervision by Probation and Parole and accept reasonable recommendations and directions and I think Ms Cotton you were saying they are the best people to-- COTTON: Yes I think that's right. HIS HONOUR: --work out where he should be referred to. COTTON: That's my view subject to your Honour's. HIS HONOUR: Yes well I think that's sensible. COTTON: My client tells me the closest office is Bankstown. HIS HONOUR: Bankstown thank you. Mr Lee any other suggestions for conditions, good behaviour, supervision-- LEE: A residential address your Honour if he changes it, he needs to contact the court. HIS HONOUR: Yes thank you, yes. 22. The conditions of the good behaviour bond are these: 1 That he be of good behaviour 2 That he notify the Registrar of the District Court at Parramatta of any change of his residential address within the period of the bond 3 That he allow himself to be supervised by the New South Wales Probation and Parole Service and accept any reasonable recommendations or directions which they make 4 That he report on or before Friday 20 November 2009 to the office of the New South Wales Probation and Parole Service at Bankstown. Now I don't set any non-parole period do I? LEE: No your Honour. HIS HONOUR: No, no. Before I explain to your client are there any other orders or directions which I need to make? I don't think so. LEE: I don't think so your Honour no. SPEAKER: No your Honour. HIS HONOUR: No and Ms Cotton's shaking her head, okay good. Mr Haines I've got to explain this to you. You've got a prison sentence of two years. Do you understand that? OFFENDER: Yes. HIS HONOUR: But I've accepted what your lawyer Ms Cotton said and I'm suspending it so it doesn't operate for two years. OFFENDER: Okay thank you. HIS HONOUR: But that's on a bond, you're on a bond, that's on condition. OFFENDER: Yes HIS HONOUR: And there's a number of conditions. You've got to behave yourself first. OFFENDER: Yeah. HIS HONOUR: You've got to accept the supervision of Probation and Parole. OFFENDER: Yes. HIS HONOUR: Do you understand that? OFFENDER: Yes. HIS HONOUR: If you change your address in the next two years you've got to write a letter to the Registrar of this court. OFFENDER: Yep. HIS HONOUR: And tell them. And on or before Friday of next week you've got to turn up at the Probation office at Bankstown. OFFENDER: Okay. HIS HONOUR: And let them know about this bond. OFFENDER: Okay. HIS HONOUR: Do you understand? OFFENDER: Yes. HIS HONOUR: Now as I say to everyone, they know what they're doing. They'll give you directions which will help you with your drug addiction. OFFENDER: Yes. HIS HONOUR: You're thirty now. OFFENDER: Yes. HIS HONOUR: So this is a good opportunity to change your life around. Do you understand that? OFFENDER: Yes sir. HIS HONOUR: And they will help you do that or support you in that but this is a particular sort of sentence and a particular sort of bond. This is not the sort of bond where if you breach it you come back and then the Magistrate or Judge, me, says, well we'll give you another go. It's not that sort of bond. OFFENDER: Okay. HIS HONOUR: This sort of bond, if you breach it, it's very hard not to send you to gaol. OFFENDER: Okay. HIS HONOUR: It's very hard not to send you to gaol. Parliament, the law is that for these sorts of bonds, they're a real exception to gaol. They say gaol and if you breach it you go inside. OFFENDER: Okay. HIS HONOUR: And it's very hard for the judge not to send you inside so it's very important that you stick to this bond. Do you understand that? OFFENDER: I do. HIS HONOUR: All right okay good luck. OFFENDER: Okay. COTTON: Just for more abundant caution your Honour he's to report to Bankstown Probation and Parole before 20th or 27th? HIS HONOUR: On or before 20th, what's this week? COTTON: That's two days time. HIS HONOUR: No I meant the 27th. COTTON: 27th so next Friday. 23. Sorry 27th that's Friday week, Friday week 27th. Thanks. OFFENDER: Your Honour once - do I still have to report to Campsie Police Station three times a week. COTTON: No. HIS HONOUR: Not any more you don't, no that's finished. OFFENDER: Okay thank you. HIS HONOUR: All right good. ********** 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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