New South Wales District Court CITATION: R v Dennis Wilson [2008] NSWDC 11 HEARING DATE(S): 3/12/07, 4/12/07, 5/12/07 (Trial) 1/2/08, 8/2/08 (Sentence) JUDGMENT DATE: 8 February 2008 JURISDICTION: Criminal JUDGMENT OF: Knox SC DCJ DECISION: The offender is formally convicted. The offender is sentenced to a non-parole period of 16 months imprisonment to date from 1 March 2007, and to expire on 30 June 2008. The balance of the term will be one of 8 months which will expire on 28 February 2009. CATCHWORDS: aggravated enter dwelling house with intent to steal - knowing that a person or persons were in the place where the offence was committed - CCTV footage - History of drug use - Methadone program - Significant criminal history - Substantial degree of planning - No evidence of remorse - Fernando factors LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Veen v The Queen (No2) (1988) 164 CLR 465 R v Fernando (1992) 76 A Crim R 58 Fernando [2002] NSWCCA 28 R v Silva [2002] NSWCCA 332 CASES CITED: R v Labrooy [2004] NSWCCA 371 R v Henry & others[1999] NSWCCA 111 R v Ponfield (1999) 48 NSWLR 327 Vu [2006] NSWCCA 188 Regina v Carter [2003] NSWCCA 243 PARTIES: Regina Dennis Wilson FILE NUMBER(S): 07/11/0494 COUNSEL: Crown: Mr P Aitken Defence: Mr T Edwards - 18 - JUDGMENT Indictment 1 On 5 December 2007 the offender was convicted by a jury following a trial on count one of an indictment which was as follows: On 23 January 2007 at Potts Point in the State of New South Wales he did enter a dwelling house, namely 17-18 of 18 Springfield Avenue, Potts Point with intent to commit a serious indictment offence therein, namely stealing in circumstances of aggravation, namely knowing that a person or persons were there in the place where the offence was committed. The maximum penalty for that offence pursuant to s 11(2) of the Crimes Act 1900 is one of fourteen years imprisonment. 2 The trial took place at Sydney in the District Court between 3 and 5 December 2007. It appears that the offender was committed for trial in June 2007. The offender did not give evidence at the trial. He gave evidence on the sentencing proceedings. Facts 3 In terms of the facts I find that on the basis of the evidence given at the trial and consistently with the jury's verdict, the following facts to have been established: 4 That four women, being members of the Kitching family, were residents of the Regents Court Hotel, Potts Point at the premises described in the indictment on the evening of 22 to 23 January 2007. 5 At about 5.30am Mrs Firth Kitching was woken. She saw a male person bent over at the doorway of the home in which she had been sleeping with her daughter and granddaughter. Ms Kitching's mother was in an adjacent room. Ms Kitching recalled that on the previous evening the bathroom window to the unit had been open. Subsequently the window appeared to be off its hinges but there was no evidence to support a break-in in the legal sense. That window was approximately three metres from the ground level and required considerable ability to climb up and enter through the bathroom window. 6 I find that the offender was the person who entered the room. Further, that he would have known or believed that the building was a building utilised for accommodation and that there was a person or persons in that room. 7 I also find the building was a dwelling house within the meaning of the definition contained in s 4 of the Crimes Act in that it was a self-contained secure suite with a bathroom, living area, kitchen and sleeping accommodation. 8 Evidence was given at the trial that Ms Kitching saw the person at the entry-way to the door. The Crown submitted to the jury that that was consistent with a person intending to ensure that he had an avenue for quick exit from the room. 9 Given that the offender was found in the room at 5.30am without the lights on, that he did not know any of the occupants, nor was he a guest at the hotel and that he fled immediately when Ms Kitching challenged him, I find that he was present and entered with the intention to steal property from within that room. Identification of the offender 10 The evidence as to the identity of the offender was not only that of Ms Kitching, but importantly obtained from the CCTV camera footage at about 5.33am showing the hallway reception area of the hotel as well as outside the hotel. Still photographs taken from those CCTV extracts showed a person with very similar features to those identified by Ms Kitching, in particular, what is commonly known as a rat's tail emanating from the rear of the person's head. 11 The offender has in any event since admitted his involvement. Evidence at sentencing proceedings 12 The offender gave evidence and said that he is currently in Parramatta Gaol. He has been at the Bathurst Correctional Centre for eight months, prior to that at Long Bay. He said he nominated himself to be there to be part of a specific program. 13 His background family history was that he was born in Bourke. He was one of eight children. He had lived with his aunt from about the age of two until he was about thirteen or fourteen. There was substantial alcohol in the house. He left school at about the age of thirteen or fourteen and moved to Dubbo and lived with his sister and then with his cousins. He tried, he said, to get away from the drug and alcohol environment, but in fact he moved into an environment which encouraged that consumption more and more. He said that he started to try heroin at the age of about thirteen or fourteen and it had been a problem for him since that time. 14 The offender said that when he was arrested later on the day of the offence that he was affected by drugs. That was corroborated by the evidence of the police. He said he was then using heroin and ice. He said the reason for his involvement in this particular offence was to get money to buy drugs. He said that in the past he had seen drug and alcohol workers. He found that the program that he had been on before was good. He said he did want to go to a residential program, contrary to the comments contained in the pre-sentence report. He said that he intended to go and live with his mother-in-law at her home at Gosford when he completes his time in gaol. He said his son is there and he is aged three. He wants to look after him. 15 The offender said that he had been involved with the methadone program. He wants to do that further and be involved in courses and rehabilitation treatment programs which will provide a basis for his discarding the drug habits that he has had, on his release from gaol. One of the purposes for this adjournment for a week is to enable his solicitor and the DPP solicitor to make enquiries about what might be available in those circumstances. 16 In cross-examination he admitted that he had not yet made an application for a residential program. He said that he had been on programs before and one was for a three-month program. He was put off that course prior to its completion because of relationship issues. 17 It did seem to me, however, from his evidence that he had little awareness of the requirements for attendance at such programs or any future plans. He had made some limited enquiries about educational and TAFE opportunities available to him. He said that he had not done it in the past because, on one occasion when he needed money, he went back to Redfern and in fact he was robbed. 18 My overall impression of his evidence is that he had made quite limited and indeed vague enquiries about what might be available for him. 19 His mother, Ms Mary-Anne Dixon, gave evidence. She had travelled from Mildura, or to be present to give evidence. She had not seen her son, the offender, for some six years. She had contacted the offender's mother-in-law and was in fact staying with her at the time. She was aware and confirmed that the offender could stay with his mother-in-law and his son, and his partner's son, on his release. It is a three bedroom house and there is room for him with his son. The offender also confirmed that he wants to maintain a relationship with his son so that his son does not go through what he went through with his own father and the absence of any paternal involvement in his life. 20 Ms Dixon confirmed that she thought that the offender had become different while in gaol. He was nicer on the phone and had reiterated his desire to live with his son to get off drugs. She said that she would come down on his release and live with the mother-in-law for a time. However, I am concerned about her awareness of the situation of her son, the offender, and what actual support she might be able to give him or the extent of her involvement in his life given the vagueness of aspects of her evidence. She was unaware of whether the offender's partner had a drug problem or not. It certainly seems in the presentence report that the offender's partner is incarcerated at the present time. Ms Dixon was also uncertain as to the nature of that relationship at the present time. Pre-sentence report 21 A presentence report was prepared by Nathan Ratzer, of the Bathurst Probation and Parole Service, dated 21 August 2007. It became Exhibit S1. That provided the following details in relation to the offender. Mr Wilson had come into contact with the Probation and Parole Service on numerous occasions in relation to the preparation of past presentence report and further supervised parole orders. The service records indicate that the offender's response to supervision was usually unacceptable. The offender breached the majority of orders and conditions imposed. The report also notes that Mr Wilson's most recent period of supervision on parole was revoked on 29 November 2005 due to the offender's failure to comply with the conditions of his order. Social/family factors 22 The report confirms that Mr Wilson was born and raised in the Bourke and Dubbo areas. It said that he was adopted by his aunty at the age of two due to issues in his parents' relationship. It was unclear whether he was legally adopted into his aunt's care or just passed to her as his parents were said to be unfit to care for him. He said that he had had maintained a positive relationship with both his mother and father. That needs to be looked at in light of the evidence that there appears to have been no contact between them for some six years. He said that his father has passed away while in custody some time ago. 23 The report notes that Mr Wilson has been involved in a relationship of some eleven years standing which resulted in the birth of his young son. As I have indicated earlier, his partner is currently incarcerated awaiting sentencing, and that son resides with the offender's mother-in-law in Gosford. Education/training/employment 24 It appears that Mr Wilson left school at about the age of thirteen. He has not completed any further education or vocational training at that time. He has remained largely unemployed and reliant upon Centrelink benefits. My assessment of his evidence so far is that he has not pursued any further education or vocational training to any significant extent. Factors related to offending 25 Mr Wilson's evidence was that he committed the offence to obtain money for his drug habit. Health/Mental Health issues 26 Mr Wilson denied ever having suffered any mental health issues. Service records indicate that he has previously been assessed by a clinical psychologist with no adverse diagnosis being made. Alcohol and drugs 27 Unfortunately, the report confirms my own observation of the offender while he gave evidence and that is that Mr Wilson has a long history of drug and alcohol abuse, particularly in relation to heroin. It seems also that he had some significant exposure to ice, which is a dreadful drug with the same sorts of problems addiction as heroin. 28 The offender is currently participating in the methadone program at Bathurst in the vicinity of receiving twenty-five milligrams daily. He had expressed a desire to switch to the bupremorphine program but had said in the report that he is disinterested in attending a residential rehabilitation facility. As I said, the offender disputed this lack of interest. Attitude to the offence 29 Mr Wilson agreed with the police facts. He did not dispute the findings of the jury and the verdict of the jury. It is said that he had some insight into his offending behaviour, particularly in relation to his alcohol and other drug dependency. However, I am concerned that he, Mr Wilson, has not realised the full gravity of his situation in terms of the likely consequences to him should the situation continue. The statistics are that if he keeps on the way he is he is likely to be dead by the time he is thirty-five. He has expressed the desire to be involved in his son's upbringing. If he wants to go the way of his father - who apparently died in custody - he has only to keep on doing what he is doing. His son, in turn, will then also be without a father. Prior convictions 30 The offender has a significant criminal history with convictions for both violent and non-violent offences. The report notes that he suffers from longstanding illicit drug and alcohol issues, as I have said, and he attributes his offending behaviour to these issues. 31 In my view there is a real problem that he has not faced up to the fact that it is his responsibility to get off those drugs. He has, when I go through his report, at least three offences of break and enter, that are substantially similar offences to the present one. He has offences for car stealing, stealing, larceny, assault, aggravated assault and assaulting police officers. Suitability for supervision 32 The Probation and Parole Service has indicated that the offender is suitable for a medium to high level of intervention by the Service. That would include strategies to address his alcohol and other drug issues. The Service recommends that in order to effectively supervise him the court order that the conditions include participation in alcohol and other drug assessment, counselling, group programs, residential rehabilitation and urine analysis testing as required. 33 As I have said to the offender: nothing is going to work unless the offender realises that he has got to be, to use the colloquial, 'fair dinkum' about getting off drugs. He can say what he likes in his evidence to me, he can tell his mother whatever he likes, but unless he wakes up to it himself and works out the reality of where his life is going, the consequences to him will be very grave indeed, particularly given the substantial involvement he has had with heroin abuse for a long period of time. 34 Notwithstanding that drug usage the offender was obviously able to exercise considerable physical agility to scale the wall to get into the bathroom of the particular apartment block, to remain quietly in the premises, in the room, relatively noiselessly, until he was surprised by Ms Kitching. The CCTV footage of him having left the room and being in the hallway reception area also displayed somebody who was in control of his faculties and in particular was able to move quickly when confronted and to make his escape. Section 21A factors Aggravating factors 35 Subject to the further submissions that the solicitors may wish to make on the next occasion, I find the following aggravating factors are present: 36 In terms of the offence being part of a planned or organised criminal activity the facts indicate a substantial degree of planning, of someone being able to scale the wall and enter in a bathroom window in the early hours of the morning. It was consistent of someone who had knowledge of the layout of the apartments and the opportunity to make a quick escape. Remorse and contrition 37 In terms of remorse and contrition, I do not see any realistic nor genuine evidence of remorse other than as lately expressed in the light of these sentencing proceedings. The offender now admits to the offences when he was interviewed by the Probation and Parole Service and in court despite him having taken the matter to trial - as was his entitlement. However he has lost the benefit of any discount that he otherwise might have had. I do not think that it is a matter where I can take into account any expression of remorse at this stage. Mitigating factors 38 In terms of mitigating factors, as I have said it was fortunate both for him and for other people who were in the room that there was no violence. 39 His prior record is not one which gives me any confidence that he will be successful in pursuing any rehabilitation. 40 It does seem to me, as I have said, that there has been a significant criminal history of both violent and non-violent offences and, in accordance with the High Court decision of Veen v The Queen (No2) (1988) 164 CLR 465, I do not think that the offender is entitled to any leniency given the circumstances and the extent and history of those offences. Fernando factors 41 The offender is of aboriginal descent and origin. He was brought up in the outlying communities around the Bourke and Dubbo areas. He has clearly come from a family and circumstances of disadvantage. He has had very limited educational opportunities and has not pursued those any further. In fact, it was probably unrealistic to expect that he would do so given the cycle of deprivation which had occurred. Clearly alcohol and drug abuse has been a problem for him and those associated with him, his extended family, for some time. 42 The factors to be taken into account by a court sentencing an aboriginal offender were described by the Court of Criminal Appeal in R v Fernando (1992) 76 A Crim R 58 at 63 and later by Spigelman CJ in Fernando [2002] NSWCCA 28 at paras 64-70. However, as those cases say, special leniency is not to be extended to aborigines in all cases or classes of cases. Later authorities have made it clear that where persons of aboriginal descent come into the city community they are nevertheless entitled to have those matters taken into account where they are relevant and applicable. That is particularly the case where offenders come from, as I find here to be the case here, a particularly disadvantaged background and where there are questions of alcohol and drug dependency, as is clearly also the case here. 43 I do take those factors into account to the benefit in imposing a sentence which is more lenient than would otherwise be the case. Finding as to criminality 44 In terms of my findings as to criminality I take into account that there was no violence. The offender immediately left when challenged. The motivation and reasons he had were clearly one of obtaining money to feed his drug habit. I find that the range of criminality involved was of low range. Authorities 45 I have take into account the following authorities, citations of which will be set out in the final version of these reasons, that is R v Silva [2002] NSWCCA 332. I think that that case involves substantially higher criminality than is the case here. That case seemed to have the hallmarks of a home invasion of the home of an elderly man with associated demands. That does not seem to be on all fours with this case. 46 I have also reviewed the decision of the R v Labrooy [2004] NSWCCA 371. Again that sentence involved facts and matters which are more serious than the case at hand - particularly given that the injuries suffered by that victim was substantial. But again the subjective features of this offender are different. JIRS statistics 47 The Crown, with the consent of the defence solicitor, tendered up Judicial Commissions statistics extracted from the relevant fields pertinent to this offender, namely pleas of not guilty with offenders with some prior history. However, as has been submitted, they were only twenty cases in the search group and the usual caution must be employed, namely, that the facts of those particular offences and the circumstances of those offenders involved are not known. Nevertheless, the statistics and the authorities referred to in those cases and considered against the background of the facts of this case, as I have outlined them, subject to submissions and the circumstances of this offender, subject to the additional matters to be raised, would suggest that the penalties that I am proposing are within the range of the reasonable exercise of my discretion. Consideration 48 This offence involved the entry of premises which were clearly premises for the accommodation of individuals in the early hours of the morning. What was involved was scaling a building to a considerable height requiring agility to get entry into the bathroom. There was no disturbance of the victims, nor physical violence, nor theft. Nevertheless, offences of this nature must be marked by a penalty which meets the requirements of general deterrence as well specific deterrence to this particular offender. 49 Given the submissions made, I think it is fair to say that the factors specified in the guideline judgments of R v Henry and Ponfield are not strictly analogous in the facts of this case. This is not a situation of an armed robbery and there are other distinguishing features. Nevertheless, I think there are some matters set out in those authorities which have been referred to, in my view appropriately, by the solicitors which warrant consideration. However, the guideline matters, particularly in Henry, suggest a range of penalties for what are not analogous situations. Suitability for drug rehabilitation program 50 The Probation and Parole Service has arranged for the Drug and Alcohol Unit to assess the offender for his suitability to participate in a residential drug rehabilitation program. I was informed that Mr Lucey of that service has said that he would not be referring the offender for a residential program. There are apparently no places available. Moreover, the fact that the offender is on the methadone program would preclude him from that program. Special circumstances 51 Urged on behalf of the offender in terms of special circumstances are that I would find special circumstances. In essence those are his age, the family support said to be available for him, the Fernando aboriginal factors and the possibility of rehabilitation. 52 I see little evidence which would support a finding that the offender would benefit from a substantial longer period. I do think that there are factors warranting a finding of special circumstances. At this stage, it would be my view that the relative adjustment would be one of two-thirds of the normal ratio rather than three-quarters. Some of those matters are set out in the decision of Vu [2006] NSWCCA 188 at para 124: In Regina v Carter [2003] NSWCCA 243, Dunford, J. (with whom Ipp, JA. and Greg James, J. agreed) stated, at [20], that offenders cannot expect to have the non-parole period reduced to facilitate their rehabilitation unless there are significant positive signs which show that, if allowed a longer period on parole, rehabilitation is likely to be successful, and not a mere possibility. Sentencing options 53 In terms of sentencing options, the offender has been assessed as unsuitable for a Community Service Order and ineligible for a Periodic Detention Order. In my view, neither of those sentencing options are appropriate. 54 I do not think that a suspended sentence is appropriate in these circumstances. Commencement date 55 The offender has been in custody solely referable to these offences since 23 January 2007. There was an intervening period when he was incarcerated or subject to incarceration for another matter. He was released on 26 April 2007 and then again served a further period from 12 May 2007. It seems that he has been in gaol solely referable to these offences for a period of a little under eleven months. Rounding it up for the benefit of the offender it is, in my view, appropriate that whatever sentence is imposed will be backdated to commence on 1 March 2007. Conclusion 56 In my view, the circumstances of this offence and of the offender, taking into account the Fernando factors should warrant the imposition of a head sentence of the order of 2 years imprisonment. My finding of special circumstances is that the statutory ratio should be reduced to one of two thirds by which the non-parole period bears to the head sentence. That finding of special circumstances is based on the offender's age, Fernando factors listed, plus the fact that there are some limited prospects of rehabilitation provided he remains with or in contact of people whom he respects who will provide him and his child some accommodation and related stability. On that basis the non-parole period will be one of 16 months imprisonment. 57 I take into account the fact that the offender has been incarcerated effectively for about 11 months solely attributable to this offence which would mean that the sentence should be backdated to 1 March 2007. Accordingly the non-parole period will conclude on 30June 2008. Sentence The offender is formally convicted. The offender is sentenced to a non-parole period of 16 months imprisonment to date from 1 March 2007, and to expire on 30 June 2008. The balance of the term will be one of 8 months which will expire on 28 February 2009. ********** 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.