New South Wales District Court CITATION: R v Kylie TREGONNING [2006] NSWDC 148 HEARING DATE(S): 14/12/2006 JUDGMENT DATE: 14 December 2006 EX TEMPORE JUDGMENT DATE : 12/14/2006 JUDGMENT OF: Berman SC DCJ DECISION: See Paragraphs [10] & [11] CATCHWORDS: Criminal Law - Sentence - Form 1 - Break, Enter & Steal - Larceny LEGISLATION CITED: Crimes Act 1900 PARTIES: Crown Kylie Tregonning FILE NUMBER(S): 06/11/0839 SOLICITORS: NSW DPP Legal Aid Commission SENTENCE 1 HIS HONOUR: Kylie Tregonning appears for sentence today having pleaded guilty to one offence of break, enter and steal, and one offence of larceny. When I sentence her for the break, enter and steal matter she asks that I take into account two matters on the Form 1. One is related to the break, enter and steal and is an offence of unlawfully entering onto enclosed lands. The other is completely unrelated, it is a further but earlier offence of break, enter and steal. 2 The offences of 26 April 2006 all occurred when the offender was under the influence of a significant quantity of drugs. It is clear that she was intoxicated by drugs due to a particular circumstance I will shortly describe. She appears to have entered the enclosed lands of 204 Crown Street, Darlinghurst on her way to 206 Crown Street, Darlinghurst, which is the premises which she broke into. They were occupied by a woman by the name of Gwenda Schreiber. Ms Schreiber was actually at home performing her occupation as a psychologist at the time that Ms Tregonning forced her way into the premises. Ms Schreiber heard the noises of that forced entry but disregarded them for a while until her consultation was completed. At that stage she heard some more noises and noticed that things had been stolen. She then contacted police who eventually arrived, but not until after Ms Schreiber became quite anxious for her safety in the knowledge that she could hear noises from upstairs and that the person who was making those noises was not deterred by the fact that Ms Schreiber had activated her house alarm. 3 When police arrived they saw a number of things, including items belonging to Ms Schreiber strewn about the house and also outside. They also heard thumping noises. They quickly identified where those noises came from and saw the offender standing on the roof of the kitchen. She was both holding a number of bags and wearing a fancy dress sailor's hat that belonged to Ms Schreiber's daughter. That latter circumstance alone is testament to the intoxicating effect of the drugs that the offender had earlier taken. She was cooperative with the police who arrested her. A lot of the property taken from Ms Schreiber's home was recovered but a lot more was not. 4 Some of the property not recovered obviously had significant emotional value for Ms Schreiber. She reports that she is now much more anxious than she was before and has in fact moved from the premises as a result of what occurred there. The effects that Ms Schreiber felt are entirely foreseeable and entirely understandable from having her home broken into by the offender. This, although it is a prevalent crime, is a very serious one indeed. The measure of its seriousness is not simply in the value of the property taken and not recovered. Its effects extend far beyond that. 5 As part of their investigation into this offence police noticed that the offender was in possession of items which had not been taken from Ms Schreiber's home. It was later discovered that they were taken from a backpack which had been stolen by the offender. The owner of the backpack was working on St Kinesis Church in Roslyn Gardens and left his backpack in a room within the Church complex. The offender has clearly entered that room and stolen the backpack before committing the offence on Ms Schreiber's premises. 6 The offender has a shocking criminal history. She has displayed, over many years, a continuing attitude of disobedience to the law and thus is not entitled to any leniency at all which would come her way had she been a person of prior good character. She has committed offences in South Australia, Victoria, and now New South Wales. She is a person who, absent some circumstances I will soon mention, is deserving of a very lengthy period in custody to reflect her attitude towards the law and to reflect, of course, the objective gravity of her conduct on this occasion. She is a person who seems unable to prevent herself from committing further offences and so a sentence with a substantial component of personal deterrence is no doubt required. 7 Ms Coultas-Roberts tendered to me a lengthy psycho/social assessment report, prepared on Ms Tregonning by a social worker in the employ of the Legal Aid Commissioner of New South Wales. I trust it will not be thought that I am treating the matter lightly by summarising it in very short compass. The summary I am about to give in no way does justice to the lengthy and distressing matters to be found in that report. Ms Tregonning is an aboriginal woman whose parents suffered as a result of being part of the stolen generation. She was sexually assaulted from the age of three or four years on a regular basis by an uncle. She suffered physical abuse as a child as well. Her mother was an alcoholic, and as she grew up she was unable to complete her schooling because of her mother's alcoholism and the poverty that resulted. Since forming a relationship with a man, first at the age of sixteen, she has suffered significant domestic violence at the hands of a number of male partners. One of those partners died and she suffered that loss keenly. A sister of hers has died of cancer and she was unable to be at her bedside as she died; another matter of loss that she feels. Finally in this summary I mention that the offender was gang raped whilst in Sydney. It is not surprising that a person with that personal history would have problems with substance abuse. The criminal law often looks at moral culpability in terms of the choices that people make. Few people become addicted to drugs involuntarily. Most people become addicted to drugs through choice, but that is not to say that all of us have the same ability to make appropriate choices in our lives. The distressing personal history that I have summarised makes it clear that the ability of Ms Tregonning to choose not to indulge in substance abuse was significantly diminished. This is also a case where the principles in Fernando are of particular application. The problems that Ms Tregonning experienced in her life are problems which are felt more keenly in the aboriginal population than in wider society. One can understand how it would be that Ms Tregonning found herself in April 2006 under the influence of morphine and serapax and not in a position to think logically about what she was doing. 8 Ms Tregonning is, and I do not wish to sound at all condescending when I say this, a remarkably well-spoken and clearly intelligent woman. It is truly a tragedy that a person of her obvious abilities and intelligence has been unable to rise out of the circumstances in which she found herself from an early age. Those circumstances are such that, as she reports to the social worker, every day for her is a challenge. Ms Tregonning has recently had a baby, Benjali, who was born in October 2006 and she has applied to be part of the mother and baby program. She must first, however, complete an anger management course. Benjali is not the only child that Ms Tregonning has. She has a number of children and she will no doubt feel keenly her separation from them whilst she is in custody. 9 Ms Tregonning was on parole at the time of committing these offences. Given the regularity and length of her criminal history that is not surprising, but it is a matter of serious aggravation. The effects of these offences on Ms Schreiber, in particular, were significant. Ms Schreiber will no doubt feel that the sentence I am about to announce is a lenient one and in many respects she is right. However, one has to bear in mind the difficulties that the offender has faced from the age of three or four. Not minor difficulties at all, but difficulties that few of us fortunately have had to deal with. She is deserving of both punishment and sympathy. The old fashioned concept of mercy has particular application in the present case. 10 For the offence of break, enter and steal, including the matters on the Form 1, Ms Tregonning is sentenced to imprisonment, with a non-parole period of eighteen months and a head sentence of three and a half years. As will be obvious, I have found special circumstances such that the non-parole period is in fact less than half of the head sentence. I have made that finding because a lengthy sentence is required, but so also is a lengthy period of supervision on parole. Once released from custody Ms Tregonning will be assisted by the Probation and Parole Service, but also be assisted by the knowledge that should she commit an offence her parole will be breached and she will find herself back inside with no one but herself to blame. 11 For the offence of larceny I set a fixed term of imprisonment of twelve months, to date from 26 April 2006. That is a fixed term because it is entirely concurrent with the other sentence and there is no utility in setting a non-parole period. ********** 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.