New South Wales District Court CITATION: R v Clayton KEAN [2010] NSWDC 29 HEARING DATE(S): 16 November 2009 JUDGMENT DATE: 12 February 2010 JURISDICTION: District Court Criminal JUDGMENT OF: Berman SC DCJ DECISION: For the offence of aggravated break, enter and steal committed on 29 September 2008 the offender is sentenced to imprisonment. I set a non-parole period of two and a half years to date from 1 December 2008 and an overall term of four years. For the offence of stealing the Mercedes motor vehicle on 30 September 2008 I set a fixed term of one year to date from 1 December 2010. For the offence of break, enter and steal committed on 11 December 2008 the offender is sentenced to imprisonment. Taking into account the Form 1 matter I set a non-parole period of two and a half years to date from 1 June 2010, I set a head sentence for that matter of five years. CATCHWORDS: CRIMINAL LAW - Sentence - Form 1 - Aggravated break, enter and steal - Drug adddiction - Continuing attitude of disobedience to the law PARTIES: The Crown Clayton Kean FILE NUMBER(S): DC 09/11/0795; DC 2009/00198608 COUNSEL: Mr K Magnus - Crown Mr K Buckman - Offender SOLICITORS: Director of Public Prosecutions O'Brians Solicitors SENTENCE 1 Clayton Kean appears for sentence today on a number of matters. The first of the matters for which he is to sentenced concerns an offence of aggravated break, enter and steal committed on 29 September 2008. Mr Kean went to some premises, he attempted to break in by removing a fly screen but was unsuccessful. He was then able to obtain a garden stake and put it through an unlocked dog door thereby reaching into one of the living rooms of the home hooking a bag and removing it. In doing so part of his body but not all of it crossed the line of the premises and so he broke into those premises and stole the bag and it's contents. 2 Mr Kean admitted doing all of that but denied doing so where a circumstance of aggravation was present, namely that he knew that the premises were occupied at the time. The trial was held before me, sitting without a jury, limited to that issue. In order to find Mr Kean guilty of the aggravated form of the offence it was not necessary for me to decide anything about Mr Kean's actual mental state. It was enough, because of the way the legislation is framed, that I found that I was not satisfied on the balance of probabilities that any such belief would have been a reasonable one. For the purposes of sentencing him however I make the finding that, given the state of the premises, which I described in my judgment, I am satisfied that Mr Kean knew that it was most likely that a person was at home when the offence was committed. 3 He also is to be sentenced in relation to the stealing of a Mercedes motor vehicle. When he stole the bag it contained within it the keys to that vehicle. The day after the offence of aggravated break, enter and steal he returned to the premises and stole that motor vehicle using the keys he had earlier taken. 4 Mr Kean is also to be sentenced for an offence of break, enter and steal that was committed in circumstances where Mr Kean did not believe and could not have reasonably believed that there were people present at the time even though in fact there were. When he is sentenced for that matter he asks that I take into account a further matter on a Form 1, that being the taking and driving of a conveyance without consent of the owner. 5 The Form 1 offence was committed on 6 December 2008 while the break, enter and steal was committed on 11 December 2008. On that day he went to the Tony Ferguson Weight Loss and Wellbeing Centre, and entered the premises through a steel security gate. People who were present inside heard the door being opened and went to investigate. They found the offender standing next to the safe. They panicked and ran out the front of the store where they used a bystander's phone to call police. In the meantime the offender had opened the safe and removed about $200 worth of notes and coins before running away. Police attended and discovered the offender's fingerprint. 6 The offender has been in custody, not continuously but for a total period of one year, two months, one week and five days referrable to these offences and so it is appropriate that I start the sentence I will shortly announce on 1 December 2008. 7 Mr Kean is a person who has spent a great deal of his life in custody. He was brought up in Tasmania where he had troubles at school and developed a drug habit. In order to satisfy that habit, as is regularly the case, he resorted to regular offending. He has spent a great deal of this life in custody. Upon release he has no skills with which to support himself in the community and he soon re-offends. In fact both of these offences were committed whilst he was on conditional liberty. He was on parole at the time of the aggravated break, enter and steal and bail at the time of the break, enter and steal. He has been married but separated from his wife about six years ago. He has a son and tragically a daughter died whilst he was in custody. He has had another relationship with a woman in Tasmania which he describes as an on and off relationship. 8 He said to the Probation and Parole Office in New South Wales that he left Tasmania in mid 2008 after he was released from custody there in order to make a fresh start. However as soon as he got to New South Wales he continued his transient lifestyle and needed to pay for both accommodation and drugs which he continued to use. It was in those circumstances that these offences were committed. He has not really made any efforts to rehabilitate himself and overcome his drug addiction. He was accepted into a rehabilitation facility, at one stage. This was upon release to bail but he simply did not go to the facility but relapsed into drug use. He now recognises, I suspect, the futility of the life that he has been leading. He seeks the assistance of the correctional authorities both in rehabilitating himself whilst in custody and in ensuring that he attends residential rehabilitation upon his release from custody. 9 The offender has displayed a continuing attitude of disobedience to the law. In ordinary circumstances that would be a significant impediment to a finding of special circumstances made in his favour. On one view he has failed to take advantage of any leniency offered to him in the past and allowing him out any earlier than would be the case by the application of the statutory ratio would simply allow him to commit offences earlier than he would otherwise. But I will accept the offender's invitation and do what I can to rehabilitate himself. 10 I will make a finding of special circumstances in his favour but on this firm understanding. Although it is not me who sets the conditions of parole it is my strong recommendation that upon the expiry of the offender's non-parole period he be released to parole, a condition of which is that he attend a residential rehabilitation program. That will require the assistance of the Correctional Service authorities in obtaining a place for Mr Kean in such a facility as well as assistance in transporting him to that facility upon his release from custody. It may seem that Mr Kean is going to require a bit more effort put into him than some might think he deserves but I am not doing this as a favour for Mr Kean. I am doing this because I hope to promote his rehabilitation so that he does not commit any further offences. If that is the case then the community benefits and in particular the members of the community benefit. 11 The aggravated break, enter and steal has a standard non-parole period of five years. The offence I am satisfied is lower than the middle range of objective gravity. It was a break, and enter only to the extent that Mr Kean put part of his body, his arm, through the dog door and although it was aggravated by the circumstance that the premises were occupied the person who was there at the time did not even realise she had been burgled until some time later. It was not a case where she confronted the offender in her home with all the attendant terror that that would entail. Another factor leading me to impose a non-parole period lower than the standard concerns the fact that it would be necessary for me to accumulate sentences in order to properly reflect the offender's overall misconduct. 12 The offender pleaded guilty to both the larceny of the Mercedes motor vehicle and the break, enter and steal and so I will impose a sentence that is twenty-five percent lower than would otherwise be the case. As Mr Buckman pointed out in objective gravity terms non-aggravated offence is probably more serious than the aggravated offence involving as it did Mr Kean entering the premises completely and stealing from a safe that was there after he had been seen by people working on the premises. Although I have been structuring an overall sentence I have decided to sentence the offender for the aggravated break, enter and steal sentence first. MAGNUS: Can I interrupt your Honour? HIS HONOUR: Yes have I made a mistake? MAGNUS: No well we have but it's not your mistake. The covering sheet indicates that the accused, the prisoner was on parole at the time. I've just worked it out, I think his parole had expired two days before. So when your Honour said he was on parole he was in fact not on parole. 13 HIS HONOUR: I withdraw the suggestion that the offender was actually on parole at the time he committed the aggravated break, enter and steal offence. However if the Crown's new calculation is correct it was only a matter of days after the expiration of his parole that he committed that offence. That is consistent with what I have described as the offender's continuing attitude of disobedience to the law and his re-offending soon after release from custody. 14 For the offence of aggravated break, enter and steal committed on 29 September 2008 the offender is sentenced to imprisonment. I set a non-parole period of two and a half years to date from 1 December 2008 and an overall term of four years. 15 For the offence of stealing the Mercedes motor vehicle on 30 September 2008 I set a fixed term of one year to date from 1 December 2010. For the offence of break, enter and steal committed on 11 December 2008 the offender is sentenced to imprisonment. Taking into account the Form 1 matter I set a non-parole period of two and a half years to date from 1 June 2010, the non-parole period will thus expire on 30 November 2012. I set a head sentence for that matter of five years. 16 I refer the matter to the Drug Court for consideration as to whether the offender is eligible to enter the Intensive Drug Treatment Program at Parklea Gaol. 17 I dismiss both of the matters on the 166 certificate. ********** 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.