New South Wales District Court CITATION: R v DUNBAR [2010] NSWDC 94 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 22 April 2010 JUDGMENT DATE: 22 April 2010 JURISDICTION: District Court Criminal JUDGMENT OF: Berman SC DCJ DECISION: The offender is sentenced to imprisonment. I set a non parole period of two years and a head sentence of four years. CATCHWORDS: CRIMINAL LAW - Sentence - Break, enter and steal in company - Need for Methadone - Offence significantly below middle of range of objective seriousness LEGISLATION CITED: Crimes Act 1900 PARTIES: The Crown Noel Raymond Dunbar FILE NUMBER(S): DC 2009/203727 SOLICITORS: Director of Public Prosecutions Aboriginal Legal Service SENTENCE 1 HIS HONOUR: Noel Dunbar is a man who should by this age be growing out of his repeated offending. 2 He was born in Sydney and brought up in Redfern. The circumstances of his upbringing were such that the decision as to whether he should commit offences or not was made with no real favourable role models to assist him. What he saw as he grew up was drinking and fighting. He did not even go to high school, he says that it was his decision but there was no-one around apparently to make him. 3 From the age of twelve he started drinking which progressed to the use of drugs. His criminal history is replete with offences committed presumably in order to obtain money for drugs. 4 He was released from custody on parole and instead of reverting back to illegal drug use, he was maintaining himself on methadone for some time. Unfortunately, however, the chemist who supplied him with methadone banned him from entering the premises. The offender said this was because he has tattoos on his arms and legs and they were scaring the young female staff members. Whatever the reason, the consequence was that the offender could not obtain methadone. He was hanging out for three or four days until, as a spur of the moment decision, he took a concrete drainage cover, smashed the front door of the chemist shop, and with another person, went into the shop and took a number of drugs. The offender says that he took methadone because that is what he needed, as well as Subutex, a drug that his sister was taking at the time. The offender says that his co-offender took a whole manner of other drugs. It did not take long for the police to work out who was responsible because, only a few hours after committing the offence, police went to the premises where the offender was living and recovered almost all of the drugs. What they did not recover was a small quantity of methadone and some other tablets. 5 The offender says that this was a decision motivated by a need, as he saw it, to obtain methadone accompanied by feelings of revenge towards the chemist who had put him in that position. This offence is unusual to some extent in that whilst it is common place for drug addicted offenders to commit offences to obtain money to buy their drugs, the offender has in one sense just cut out the middle man by committing an offence which leads directly to the drugs. On the other hand it is to be noted that what the offender took was methadone; that is consistent with a desire on the offender's part to take a drug other than illegal drugs such as heroin. 6 The offender wants, upon release from custody, to return to his family in Singleton and to continue his drug rehabilitation. The offence was committed whilst the offender was on parole for a driving matter which increases of course the gravity of his misconduct. On the other hand it has to be noted that the offender was, at the time he committed this offence, less able to rationally think about the consequences of his wrongdoing than he would otherwise have been. That of course relates to the fact that he had been hanging out for a number of days. The offender expressed his remorse and said that the reason he committed the offence was to make himself better. 7 This is an offence which carries a maximum penalty of 20 years and a standard non parole period of five years. The standard non parole periods regime has been the subject of criticism for many years now, most recently by the Director of Public Prosecutions on the ABC's "Lateline" program. But of course it is a law that we judges have to apply. 8 Of recent times the Court of Criminal Appeal has been suggesting that where, as here, there is a plea of guilty, the extent to which the standard non parole period should be used as a benchmark is such that, all other things remaining equal, the non parole period that should be imposed is 25% less than the standard non parole period. This will inevitably lead to longer and longer sentences, particularly in those offences where the standard non parole period is a significant proportion of the maximum penalty, indeed one standard non parole periods is 71.4 70% of the maximum penalty. However, as I said, as a judge it is for me to apply the law. 9 That brings me to the question of whether this offence falls within the middle of the range of objective seriousness. I am satisfied that it is significantly below. Perhaps the clearest way to identify why that is so is to look at the circumstances of aggravation to be found in s 105A of the Crimes Act. The circumstance of aggravation in this case was that the offender was in company with another person. It is, especially in the circumstances of this case, by far the least serious circumstance of aggravation to be found in s 105A(1). It is almost inevitably the case that an offence of break, enter and steal committed when the person is armed with an offensive weapon or uses corporal violence on someone or inflicts actual bodily harm on someone or deprives a person of his or her liberty or knows that there is a person there in the premises where the offence is committed, commits a much more serious, objectively, offence than this offender did. 10 In the circumstances of this case thus whilst this offence may be rather unremarkable compared to other offences of break, enter and steal in company it is significantly below the middle of the range of objective seriousness of offences to which the standard non parole period of five years applies. 11 Nevertheless as I have tried to make clear, the standard non parole period does remain as an important guidepost to the sentence I must impose in this case. 12 There are special circumstances. The offender has attempted drug rehabilitation to the extent of remaining on methadone even whilst in the community for a period of nine months. It is to be hoped that his drug rehabilitation will continue but he will greatly benefit from the assistance of others whilst on parole. Of course not only will he benefit, but the community will as well. 13 I note also that there is a matter on a Form One relating to the offender's possession of some cannabis. What I have said about the offender remaining drug free of course has to be qualified by that circumstance. 14 In the circumstance of this case therefore, this is the sentence I will impose. 15 The offender is sentenced to imprisonment. I set a non parole period of two years to date from 8 September 2009 which means the offender is eligible to be released to parole on 7 September 2011. I set a head sentence of four years. 16 I order that the cannabis, the subject of the Form One is destroyed. ********** 03/06/2010 - Correction of legal representation - Paragraph(s) Cover sheet 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.