R v Nicholls, David [2008] NSWDC 123

New South Wales District Court

CITATION: R v Nicholls, David [2008] NSWDC 123

HEARING DATE(S): 02/04/2008

JUDGMENT DATE: 3 April 2008

JURISDICTION: Criminal

JUDGMENT OF: Nicholson SC DCJ;

DECISION: Convicted Sentenced -13 months 15 days imprisonment - suspended conditional upon entering s.12 Good Behaviour Bond.

CATCHWORDS: Criminal Law - Sentencing - Aggravated Break Enter and Steal (in Company) - valuable coin and war medal collection and other items - offender tasked with removing items from property to other location - aggravating features - planning - extends beyond house to second site - owner absent for some days - lengthy duration of offenders inside - damage to property - home ransacked - $125K property loss - 18 year old offender - some coins recovered

LEGISLATION CITED: s.12 (3) Crimes (Sentencing Procedure) Act 1999

Gladue v The Queen [1999] 1SCR 688 [80] R v Rushby [1977] NSWLR 597 R v Hayes [1984] 1 NSWLR 740 CASES CITED: R v Cuthbert [1967] 2 NSWR 329 Brewster [1998] 1 CAR 220 at 225 R v Lovelock (1978) 33 FLR 132 R v Way (2004) 60 NSWLR 168 R v Huynh [2005] NSW CCA 220

PARTIES: Regina David Nicholls

FILE NUMBER(S): 07/61/0002

COUNSEL: D.G. Rickard for Offender

SOLICITORS: Mr J. May: Office of DPP, Dubbo, for the Crown.

JUDGMENT HIS HONOUR: 1. John George is a numismatist. Numismatics is the study or collection of coins, tokens, paper money and related objects such as medals. Mr George was in possession of one of the top collections west of the Blue Mountains. For safekeeping the collection was stored in a safe located in a spare bedroom in his Brewarrina home. 2. On 3 July, after arranging with a nearby neighbour to feed his dogs, Mr George left Brewarrina for Lismore. The house was left with windows and doors securely locked. The coin and paper money collection was nestled safety in the locked safe. The safe was heavy. Without a trolley, it would take two persons to move that safe. 3. At 4pm on 5 July a neighbour attending the premises gave the dogs a run. He noticed everything was fine. About 8am the following morning he returned to find a small kitchen window smashed, the back screen door lock broken and the shed doors opened. He became concerned and rang police. By 10am Mr George had been informed his home had been broken into; it had been completely ransacked and the safe and its contents were missing. 4. As events had unfolded, it became apparent that two juveniles and two adults, all aboriginal males, were responsible for the breaking, entering and ransacking of Mr George's home and stealing of his property. 5. Today David Nicholls, at eighteen, the second eldest of this group, is to be held accountable for his role in this criminal activity. He first announced his intention to be accountable when he pleaded guilty in the Local Court in Brewarrina. He confirmed his intention when he pleaded guilty to an indictment presented on Tuesday, 1 April, to a charge that he on 5 or 6 July 2007 at Brewarrina did break and enter the dwelling house of John George situate at 16 Tarrion Street, Brewarrina and then in the said dwelling house did commit a serious indictable offence, namely larceny in circumstances of aggravation, namely that he was in the company of one RB, one CB and Cecil McHughes. 6. As sentencing judge, it falls to me to resolve a number of competing tensions, as I strive to determine the appropriate sentence for this offence before this court committed by this offender, harming the victim that he did in this community (Gladue v The Queen [1999] 1SCR 688 [80]). My initial task requires an assessment of the objective criminality of the offence before the Court. I will also need to have regard to matters personal to the offender, subjective matters. The starting point for such assessments requires the sentencing judge to make findings of fact from the evidence before the Court relating to the offence and to the offender. 7. My fact finding task has been circumscribed to some extent in that the parties have tendered an agreed set of facts to which I shall shortly return. It is sufficient at this point that I remind the Court, a judge is not a party to the agreed facts. The tender of agreed facts does not relieve a judge from his fact finding responsibility, it simply limits the material from which facts may be found. To the extent, if it be the case, that the facts as agreed to not reflect the actual events that occurred, it must be remembered the Court can only find facts from the evidence placed before it. 8. The offender's rehabilitation prospects will have to be assessed, even if looking through a glass darkly. Before any sentence can be made, there are likely to be technical questions relating to deterrence, discounts, whether this offence attracts a standard non-parole period and finally, of course, the ultimate length of the term of imprisonment or other penalty to be imposed. None of these can be commenced until the primary facts are determined. 9. What weight needs to be given to all of these matters against the imperative that all sentencing should have, as its primary focus, the protection of the community, will also need to be determined (see R v Cuthbert [1967] 2 NSWR 329, R v Rushby [1977] NSWLR 597, R v Hayes [1984] 1 NSWLR 740). Further facts: 10. Entry was gained by smashing a kitchen window. One offender initially entered the house, opened the rear door from within and the other three then entered. At some point the alarm had been cut near the telephone. 11. This offender remained in the house for some five minutes before taking an esky and leaving the premises with one of the juveniles. The offender claims he took the esky with a view to using it. He concedes he knew there were items in the esky but did not identify them. I reject this account.