R v RIDGEWAY; R v SHEARD; R v WELLS [2011] NSWDC 90

District Court New South Wales

Medium Neutral Citation: R v RIDGEWAY; R v SHEARD; R v WELLS [2011] NSWDC 90 Hearing dates: 16 June 2011 Decision date: 16 June 2011 Jurisdiction: Criminal Before: Berman SC DCJ Decision: Sentenced to imprisonment - see paragraphs [40], [41] and [42] Catchwords: CRIMINAL LAW - Sentence - Home invasion - Aggravated break enter and steal in circumstances of aggravation - Multiple circumstances of aggravation - In company - Armed with machete Legislation Cited: Crimes Act Category: Sentence Parties: The Crown Jasmine Lee Ridgeway - Offender Emmett Raymond Sheard - Offender Dean Nathan Wells - Offender Representation: Mr J. M. Fitzgerald - Offender Ridgeway Mr G Sundstrom - Offender Sheard Mr P Rosser QC - Offender Wells Director of Public Prosecutions Aboriginal Legal Service - Offender Ridgeway Legal Aid Commission - Offender Sheard Virginia Taylor Lawyer - Offender Wells File Number(s): 2010/235278; 2010/253355; 2010/234947

SENTENCE 1HIS HONOUR: Appearing for sentence today are three offenders, Jasmine Lee Ridgeway, Emmett Raymond Sheard and Dean Nathan Wells. They each pleaded guilty at the Local Court to offences of aggravated break, enter and steal in circumstances of aggravation. The maximum penalty for that offence is twenty years' imprisonment with a standard non-parole period of five years; the standard non-parole period is not of direct application but it remains as an important guidepost to the sentences I should impose. 2In the case of Mr Sheard and Mr Wells, the circumstance of aggravation relied on is that they inflicted actual bodily harm upon the victim of the offence. In Ms Ridgeway's case a different circumstance of aggravation is relied on, namely that she was in company with Mr Sheard and Mr Wells. As will be apparent soon, multiple circumstances of aggravation existed. 3On 7 July last year Mr Neville Canon, who was then seventy three years of age, was home alone. At about 9.45pm there was a knock on the door; it was Ms Ridgeway. She asked if she could use the toilet. Mr Canon suggested that she go and see "Uncle Reg", an Aboriginal elder who lived next door, but Ms Ridgeway told Mr Canon that she did not know Uncle Reg and that she really needed to go to the toilet. Mr Canon opened the door and let Ms Ridgeway in. He closed the door behind him and showed Ms Ridgeway where the toilet was. However, when he walked back into his living room he was confronted by two men, Mr Sheard and Mr Wells. One of them had a balaclava on and the other one was covering his face with what appeared to be a scarf, but both of them were armed with machetes. They started to wave their arms around, saying "Where's the safe?". Mr Canon said he did not have a safe. 4The male with the scarf around his face kept walking towards Mr Canon, waving the machete. When he was in front of Mr Canon, defending himself, the latter grabbed the male by his throat. A struggle then ensued, during which Mr Canon suffered cuts to his right hand, he fell backwards over a heater. After that happened, he was able to see the male in the scarf and Ms Ridgeway going through the house, clearly looking for things to steal. After a few minutes they left and Mr Canon went to a neighbour's house to call police. 5It turns out that a watch and an old mobile phone were taken from the premises. Mr Canon went to hospital, where he was treated for superficial lacerations, and underwent an x-ray which showed that he had a fractured left clavicle. He was given painkillers, antibiotics and his arm was placed in a sling. There was nothing found at the scene to identify who it was who had committed this offence. 6It is important to understand that the Crown tendered before me three separate statements of fact, one in relation to each of the offenders. Much of the statements of fact was identical, but there were substantial differences concerning what each offender had done after committing the offence. In particular, it seems that Mr Sheard and Mr Wells both deny that they were the person who struggled with Mr Canon and that they were the person who, with Ms Ridgeway, searched the house. I repeat, the Crown tendered three different statements of fact and did not tender the statement of facts in the case of any accused in the case regarding the others. The Crown controls the way it presents its case and not me, all I have got to do is somehow work my way through the difficulties that the Crown's decision creates. 7I should state at the outset that I will not sentence either Mr Sheard or Mr Wells on the basis of he was the one who struggled with the victim and who continued to search the premises with Ms Ridgeway after Mr Canon was injured. But nor can I make a finding, a positive finding, in favour of Mr Sheard or Mr Wells that it was he who immediately regretted going to the unit and effectively played little further part. That is a matter I am satisfied which would need to be proved on the balance of probabilities, and statements to the police not repeated in evidence in the court are insufficient to overcome this burden. 8As I mentioned, there is a different circumstance of aggravation pleaded in the case of Ms Ridgeway. That was because she was not herself armed with a machete or knife, but she knew full well that her two co-offenders were, and so the fact that there is a different circumstance of aggravation pleaded will make little difference to the sentence that I would impose upon her. 9As I mentioned earlier, there were multiple circumstances of aggravation present. I have, or course, had to be careful not to double count, and I will not do so by following the path that Mr Rosser suggested would be wrong. But with that qualification it is important to note that many other circumstances of aggravation to be found in s 105 of the Crimes Act were present. Mr Wells and Mr Sheard were armed; each of the offenders was in company; corporal violence was inflicted on Mr Canon; actual bodily harm was occasioned; and each of the three offenders knew that Mr Canon was at home at the time they broke into his premises. Another circumstance which suggests the seriousness of this offence concerns Mr Canon's age and the fact that he was home alone. The offenders preyed upon his good nature. 10This offence is accurately described as a home invasion and the most serious one of that. Because the offence carries with it a standard non-parole period, I am required to identify the objective seriousness of the offence with more particularity than I would have to if the offence did not carry with it a standard non-parole period. In each case I find that, objectively, the offenders have committed an offence which is slightly above the middle of the range of objective seriousness. 11Before moving on to the individual cases of each offender, I should note that I have taken into account the principles of parity. I have attempted to ensure that no offender has a justifiable sense of grievance when he or she compares the sentence imposed on him or her with the sentences imposed on the other offenders. As it turns out, there will be substantial differences in the sentences which are imposed, but that circumstances is largely a reflection of the very different subjective features of each of the offenders. 12I will deal with Ms Ridgeway first. 13She was only eighteen years of age at the time of the offence. Her parents separated when she was twelve years of age and her mother died shortly thereafter. Her father then moved away from the area and Ms Ridgeway lost contact with him. Following her mother's death, Ms Ridgeway moved in with her older sister, but that relationship broke down due to Ms Ridgeway's behaviour and she was asked to leave her sister's home. As the author of the Probation and Parole reports, Ms Ridgeway described herself as being out of control during her teenage years. She moved into her uncle's home and was mostly residing with him until her incarceration. 14She was allocated a mentor, a Ms Rowe, when she was in year 9; she is fortunate indeed to continue to have the support of Ms Rowe, who gave evidence on Ms Ridgeway's behalf today. It has been distressing, I gather, for Ms Rowe to have watched the offender's behaviour deteriorate, but there is hope for the future. The offender, Ms Ridgeway, has been in custody for some time but has used her time to reflect upon her position and now has plans for the future. Upon her release she wants to attend TAFE to complete her School Certificate and re-enter society as a law-abiding citizen. 15In the immediate time leading up to this offence Ms Ridgeway's drug use got out of hand. She had commenced binge drinking and cannabis use at the age of twelve and continued to smoke cannabis on a daily basis until she was introduced to harder drugs, gas and speed, about a week before the offence. She was using those drugs daily leading up to the offence and claims that she does not actually remember the details of the offence because of the effects of drugs and alcohol upon her. 16She clearly impressed the author of the pre-sentence report, who in the summary to that report said this: "Miss Ridgeway has fully cooperated during the preparation of this report. She impresses as a young woman who has been drifting for some time following the death of her mother. She appears to be motivated to address her issues underlying her drug and alcohol abuse and resume her education. Her previously strained relationship with her sister appears to be on the mend and she continues to enjoy the support of her extended family". 17It is, of course, not all roses. Since being in custody Ms Ridgeway has accumulated a substantial number of disciplinary charges. However Ms Rowe gave evidence that suggested that any misbehaviour of Ms Ridgeway whilst in custody could be largely explained by her frustration at the delay in this matter being finalised. 18Ms Ridgeway has no prior convictions at all, I repeat she was only eighteen years of age at the time of the offence, and so it is to be hoped that, as Mr Fitzgerald suggested, this matter would not be her first offence but her only offence. I am prepared to find that Ms Ridgeway does have good prospects of rehabilitation and that there is a good prospect that Mr Fitzgerald's prediction will turn out to be true. 19I have not mentioned thus far the most important factor as regards Ms Ridgeway, her likelihood of rehabilitation, and ultimately the sentence that I will impose upon her. 20Soon after the offence, indeed only two days later, Ms Ridgeway went to the police and told them what had occurred on 7 July 2010. She also indicated that she was prepared to assist police further if required. She nominated her co-offenders as being involved in the offence with her and also told them who it was that drove the car to Mr Canon's home. It is very important to understand that at the time Ms Ridgeway went to the police she was not a suspect. I repeat something I said earlier, there was no forensic evidence discovered at the scene to identify who she was. She is thus entitled to a substantial R v Ellis (1986) 6 NSWLR 603 discount. She has told police that she was involved in the offence where, at least at that stage, there was nothing that the police had to suggest that she was one of the offenders. 21That is very substantial evidence of her remorse. I am not suggesting it is the only evidence of her remorse because she has also expressed her remorse to others, but the best evidence indeed of how Ms Ridgeway now feels about what she did concerns the fact that it was she who turned herself in rather than the police coming to get her. Of course that is a very important matter also in assessing the likelihood that she will do what she hopes to do, and that is put this matter behind her and lead a productive and law-abiding life. She will have support of others when she is released from custody and, if she chooses to accept that support, I am confident that she will be able to achieve what she hopes. 22I should make it clear that I will impose upon Ms Ridgeway a significantly lower sentence than would otherwise be the case. Mr Fitzgerald conceded that a custodial sentence was required, albeit he made that submission on the basis that the non-parole period should simply be time served. However I do not agree that a custodial sentence is required in the circumstances of this case, in particular noting that she has already done more than seven months in custody. I will impose a non-custodial sentence upon her later in these remarks. 23I turn now to Mr Sheard. 24Mr Sheard's parents separated when he was about five and he remained with his mother until he was about age fifteen. He was asked to leave home because he was abusing alcohol and drugs and his antisocial behaviour was attracting the attention of the police. He went to live with his older sibling for a short period of time before returning to live with his mother. He has had no contact with his father since he was about fifteen because of his illicit drug use. He was expelled from school in year 9 but did make efforts to obtain and keep work, although he lost his job in the building industry when he was disqualified from driving. He had been unemployed for about twelve months before the offence and, as he told the author of the pre-sentence report, he was relying on crime and associates for support. After the offence and whilst he was on bail he met his current girlfriend; he said that she is a good support and a positive role model and he wants to live with her upon his release. 25Unfortunately he appears to have lost contact with his mother as she has recently moved. He too has a problem with drugs. In his case he started drinking and using cannabis at the age of fourteen, but his drug use escalated very quickly so that by the time he was fifteen he was using ice, gas and acid. In the lead up to the offence he was abusing alcohol and drugs most weekends. He would on occasions binge from Wednesday through to Sunday. He said that at the time of this offence he was on a drug binge and became involved because of what he could obtain. He was offered free drugs. 26He expressed his remorse to the author of the pre-sentence report but did not give evidence in court today as to how he now feels about what he did. He was on probation at the time of this offence. He had been dealt with for an offence of resist police and an offence of take and drive and put on twelve months' probation for each offence. That is a matter which, of course, aggravates his conduct in this matter, but I have to be careful not to double count. I note that because of this offence he was called up for breaching his probation orders and received a sentence of one month's imprisonment. Although he has been in custody since 7 September 2010, I will start the sentence I will ultimately impose upon him from 7 October 2010 because one month of that custody is referable to the sentence imposed after being called up for breaching the probation orders. 27Mr Sheard has a criminal history but it could not be said to be extensive. In particular there is no other break, enter and steal offence on his criminal record, nor is there an offence of violence. He too was very young at the time of this offence. 28Although the law has to draw the dividing line somewhere and draws the line between dealing with someone as a child and dealing with someone as an adult at the age of eighteen, there is not some magical change that occurs in a human being on their eighteenth birthday. Mr Sheard, like Ms Ridgeway, was still very much a child at the time of the offence and so the principles for sentencing young people are very important. It has to be recognised that the sentence that I will impose upon him is much lower than would have been the case if he had been older, wiser and more mature. 29I cannot say that Mr Sheard's prospects for rehabilitation are good. That is not to say he does not have some prospects of rehabilitation, clearly he does, but, given his problems with drugs and alcohol, given that he has had those problems for some time, and given they were part of what led to him committing this offence, the path for Mr Sheard is not going to be an easy one. I mentioned before that the offender expressed his remorse to the author of the pre-sentence report. There is also the plea of guilty which can be used in an appropriate case as evidence of remorse, and so, not without some hesitation, I will find on the balance of probabilities that he has genuinely accepted responsibility for what he has done. 30A custodial sentence is obviously required in his case, but I will make a finding of special circumstances in his favour, due primarily to his youth and his need to have an extended period of supervision on parole, so that his problems with drugs can be addressed whilst he is in the community, as much as that is possible. 31I turn now to the case of Mr Wells. 32He was older than the other two. Since he has turned twenty he has spent almost all of his life in gaol. He was born in Newcastle. His parents separated when he was quite young and he has been raised by his mother and his stepfather. His stepfather gave evidence on Mr Wells' behalf today. Mr Wells treats his stepfather as his "dad". He remains close to his parents. He had significant disciplinary problems in school once he entered high school. There were issues with truancy, suspension and finally he was expelled. He went to a different school but was expelled from that as well. He has not been to school since. 33He too started drinking as a child of fifteen, and his alcohol consumption is now clearly excessive, drinking about a bottle of spirits each day. He also has problems with cannabis, using it on a daily basis. He has tried other drugs, in particular he has dabbled in heroin and used amphetamines as well. A psychiatrist who interviewed him made the obvious finding that he meets the diagnostic criteria for poly-substance dependence. His problems with the authorities are numerous and varied, from lighting bushfires, stealing motor vehicles, driving offences, assaults, and breaching an AVO. Once he became an adult he commenced committing offences of a broadly similar kind to that for which he must be sentenced today, break, enter and steal. 34He was on three s 12 bonds at the time of this offence, (it might even be four s 12 bonds, there are certainly a number of them.) Once more this is a significantly aggravating feature, but once more I have to be careful not to double count. In this case the commission of this offence saw him breached on the suspended sentences and he was sentenced to four months' imprisonment. I will start the sentence that I will ultimately impose upon him on 17 November 2010. 35Given the length of time that the offender has already spent in custody since he turned twenty there is a real risk that if he does not change his ways he will be one of those unfortunate members of society who I see regularly enough, who waste their lives in prison, people who measure out their lives in court dates and custodial sentences. Mr Wells is well on his way to being one of those people. Often offenders, at the age of forty, forty five, fifty, eventually turn around and look at how they have lived and realised the futility of their lives, when it is all too late. 36I mentioned before that Mr Wells' stepfather gave evidence. Though he does not visit Mr Wells in prison, for reasons which were explained, he speaks regularly to him over the telephone. His evidence was that for the first time Mr Wells has said that he did the wrong thing. As I understand it, Mr Wells is saying that he regrets the escalation of his criminal behaviour that this offence represents. So he too is remorseful for what he did, even if perhaps he does not yet accept the futility of the life that he has led. 37In common with the other two offenders, the substantial motivating feature for this offence was his drug use. I will make a finding of special circumstances in his favour also because of the benefit not only to him but also to the community which an extended period of supervision on parole would bring. If the offender can be assisted to overcome his drug problem, then the chances of him committing further offences on his release from custody will be reduced. Not only would he be better off if that were the case, but so would the community. 38I will now impose sentences. 39In the case of Jasmine Lee Ridgeway, noting that Ms Ridgeway has spent more than seven months in custody, I impose upon her two hundred hours' community service, she is to perform two hundred hours' community service and to report to the Lake Macquarie Probation and Parole Service within seven days upon her release from custody. She is entitled to be released forthwith. 40In the case of Emmett Raymond Sheard, he is sentenced to imprisonment. I set a non-parole period of two and a half years and a head sentence of five years. That sentence, as I said earlier, will commence on 7 October 2010 and so Mr Sheard is eligible to be released to parole on 6 April 2013. 41In the case of Dean Nathan Wells, I sentence him to imprisonment. In his case I set a non-parole period of four years to commence on 14 November 2010 and a head sentence of six and a half years. His non-parole period will expire on 13 November 2014 and that is the first date on which he is eligible to be released to parole.