New South Wales District Court CITATION: R v Sean Luke TIBBEY [2009] NSWDC 146 24 October 2007 HEARING DATE(S): 3 October 2008 12 December 2008 20 March 2009 JUDGMENT DATE: 20 March 2009 JURISDICTION: Criminal JUDGMENT OF: Berman SC DCJ DECISION: On each offence the offender is sentenced to imprisonment, with a non-parole period of six months to commence on 6 April 2009 and a head sentence of eighteen months. The non-parole period will expire on 5 October 2009. CATCHWORDS: Criminal Law - Sentence after breaching s 11 remand - Break enter and steal - ADHD PARTIES: The Crown Sean Luke Tibbey FILE NUMBER(S): DC 07/31/0139 COUNSEL: P Massey - Offender SOLICITORS: NSW DPP Legal Aid Commission SENTENCE 1 HIS HONOUR: Sean Tibbey appears for sentence today. He was before me some time ago when the matter was dealt with at the East Maitland District Court. On that occasion, having read the evidence put before me, I determined that there were prospects for Mr Tibbey's rehabilitation and put him on a s 11 remand. Unfortunately he has breached that remand in a number of ways; firstly by committing a further offence and secondly by failing to report to the Probation and Parole Service as required. 2 As I told Mr Tibbey at the time of putting him on a s 11 remand, if he committed further offences or a further offence, I would send him to full-time gaol. I also told him that it was not a pleasant place. 3 Mr Tibbey committed two offences of break enter and steal just before his eighteenth birthday and two just after his eighteenth birthday. I am dealing with the latter two. They were both committed on the same night when he and his co-offender broke into the Target store in Scone by removing a roof panel and then by cutting through some padlocks on a shipping container at the rear of the store. They then took a number of items of electronic equipment. Shortly thereafter they went to another shop in Scone. There they broken into more shipping containers, but did not take much material at all. The following day Mr Tibbey's premises were searched, and he was arrested shortly thereafter when he attended at the Muswellbrook Police Station. 4 These offences were serious, a matter which Mr Tibbey I do not think realised at the time, but hopefully does realise now. So serious are the matters that they carry with them standard non-parole periods of five years imprisonment. That of course is not of direct application in the present case because of the plea of guilty, but the standard non-parole period indicates the seriousness with which the legislature says judges should treat offences such as these. The community is rightfully sick and tired of people like Mr Tibbey committing offences of this kind. 5 Quite clearly, however, when Mr Tibbey appeared before me in 2007, I consider that there were prospects for his rehabilitation. A report from a Dr Hampshire was tendered and that, and other evidence, suggested that Mr Tibbey had commenced the process of rehabilitating himself, but had some distance to go. As events have turned out, I was perhaps a bit optimistic. Nevertheless the fact that the offender has recently spent some time in custody will assist in his further rehabilitation through deterring him personally from committing further offences in the future. 6 The offender's upbringing was much less than satisfactory, although I note that this is something of an understatement. He is fortunate that his grandmother was able to take over the care of him from such a young age. His mother is a drug user and she has had little contact with him and in fact none in recent years. His father has spent time in custody for drug offences. He has recently been released from custody and is living Sydney. He has not attended court today. 7 His grandmother is to be commended for the efforts that she has put into raising her grandson. I am sure that matters would have been much worse had she not taken the care of him that she has taken. She has done everything she could as far as I can see, to avoid the situation where Mr Tibbey is in custody and facing further time there. 8 Mr Tibbey suffers from ADHD. That condition is related to his criminal offending directly because people like Mr Tibbey are less able to reason about the rightfulness and wrongfulness of their conduct, but also indirectly because Mr Tibbey was in the habit of self-medicating. He found that by taking amphetamines he was able to concentrate more, and become what he considered to be more normal. Unfortunately those with whom he took amphetamines described better feelings, higher feelings than simply feeling normal and Mr Tibbey therefore began to increase the dose of the drugs that he took in an attempt to feel the same way his fellow drug takers did. 9 He says that these offences to which I am sentencing him today were committed so that he could obtain money in order to buy drugs, although when the police searched the premises they found most of the property. It seems to have been simply because there had not been time to sell it before the police arrived. 10 Because of the offender's ADHD, I will not impose a sentence upon him which has a full component of general deterrence. However as has been repeatedly pointed out, the fact that an offender suffers from a condition which suggests that general deterrence is of less importance does not mean that a lesser sentence must necessarily be imposed, because other purposes of sentencing, in this case particularly personal deterrence, may have increased relevance. 11 The offender describes his recent time in custody as the worst time of his life. He explains why that is so and refers to the fact that he has been assaulted whilst in prison. I fully recognise that the decision I am making today requires the offender to spend longer in custody and that that is a significant circumstance where the offender is as young as Mr Tibbey is and where his conditions of custody are as bad as he describes. Nevertheless I regard it as important to deter Mr Tibbey from future offending and that he fully understands the consequences of further offending. 12 Mr Tibbey was dealt with for the offence he committed whilst on the s 11 remand in the Local Court in March this year. Because he had been arrested in early September 2008, the magistrate sentenced Mr Tibbey to a fixed term of imprisonment, receiving seven months and six days. At the same time he was dealt with for breaching bonds imposed in the Children's Court for the two other break, enter and steal offences that I have referred to. He received wholly concurrent sentences of six months imprisonment. That is why Mr Tibbey has spent over six months in custody so far. 13 Mr Massey suggested that I should deal with this matter by way of a s 12 remand or, as a fallback position, home detention. I am not proposing to do either of those things. A s 12 remand would in my view be insufficient to fully personally deter the offender from future misconduct. 14 It should not be thought that the offender's life ahead is going to be an easy one. There are indications that things might well improve. The offender's grandmother says that for the first time whilst visiting him in custody, her grandson realises that in truth he is to blame for his present predicament, not others. The offender has been seeing Mr Brandtman and hopes to continue treatment with him or someone recommended by him upon his release from custody. 15 These matters do speak well of prospects for the future, but I am going to do what I can too to emphasise to the offender the choices that he has in the future. If he commits further offences, he will go back to gaol and as I said before, I want him to be fully aware of what that will involve. Of course this is not to suggest that I am imposing a sentence of imprisonment which is greater than is warranted by the objective gravity of the offender's conduct. As I mentioned, the offender's conduct was serious. It was an aggravated form of break enter and steal and carries a standard non-parole period allocated by Parliament. In no way could it be said that the sentence I am shortly to announce exceeds that required to reflect the objective gravity of the offender's conduct, even given the mitigating features operating in his favour, most importantly perhaps, the fact that he was just over the age of eighteen at the time he committed these offences. 16 Before announcing sentence I should make a recommendation. It is my recommendation that upon his return to custody, he is to be immediately reviewed by Justice Health regarding the appropriateness of the medication Zyprexa, currently prescribed for him. 17 The offender pleaded guilty to these offences. I will discount the overall sentence that I would have imposed by twenty-five per cent to reflect those pleas of guilty. That discount is, in the circumstances of this case, reflected in my decision to make the sentences wholly concurrent. In other words were it not for the pleas of guilty, the overall sentence would have been longer. 18 On each offence therefore, the offender is sentenced to imprisonment. I set a non-parole period of six months to commence on 6 April 2009. The non-parole period will expire on 5 October 2009 and I set head sentences in each case of eighteen months. The total sentence is thus expiring on 5 October 2010. 19 It is a condition of the offender's release to parole that he continue regular treatment with either Dr Pickering or a medical practitioner recommended by him. Other conditions of parole are that on parole he take all medication prescribed for him in accordance with the way in which it is to be prescribed and that he obey all reasonable directions of the Probation and Parole Service by whom is to be supervised whilst on parole. 20 Mr Tibbey, you have understood what I have done? You have got another slightly more than six months to do. You get out on 5 October this year. Once you are out, you are on parole. On parole you have got to do those things I mentioned; continue seeing Dr Pickering or someone recommended by him, continuing to see the Probation and Parole Service, take any medication that is prescribed for you. If you do that then you do not go back to gaol. If you do not do it, you do go back to gaol and as I have said repeatedly to you, if you commit further offences, you will be going back to gaol as well. Your grandmother says it is no longer a case of you blaming others and taking responsibility for your own actions. It is you who decides whether you go back to gaol or not, do you understand. ********** 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.