District Court New South Wales Medium Neutral Citation: R v WILLIAMS [2011] NSWDC 118 Hearing dates: 21 July 2011 Decision date: 21 July 2011 Jurisdiction: Criminal Before: Berman SC DCJ Decision: The offender is referred for assessment as to his suitability for an intensive correction order as a means of serving his sentence. Catchwords: CRIMINAL LAW - Sentence - Aggravated break enter and steal - In company - Form 1 - Intensive Correction Order - Referral for assessment Category: Sentence Parties: The Crown Elliott Thomas Williams Representation: Director of Public Prosecutions File Number(s): 2010/297528 SENTENCE 1HIS HONOUR: Elliott Thomas Williams appears for sentence today after having pleaded guilty at an early stage to an offence of aggravated break enter and steal. The circumstance of aggravation relied on by the Crown is that Mr Williams was in company at the time of the offence. I have spoken on other occasions about the way that the objective gravity of an offence of this kind is determined insofar as it carries with it a standard non parole period. I can therefore very briefly say that circumstance of aggravation relied on by the Crown (in company) and the actual indictable offence committed after breaking and entering (stealing) are both towards the bottom of the range of their respective criteria. For that reason many offences of break enter and stealing in company would be at a fairly low level of objective gravity. But not this case. 2The offender, as I will describe, committed this offence in such a way as to cause significant consequences for the victims of it. Mr Williams is 21 years of age. He lives with his mother. His parents separated when he was three. His father left and he remained with his mother and his half brother. His half brother James suffered from cerebral palsy requiring a great deal of care. This involved his mother in almost full time care of James. When the offender turned 14 he too began caring for James. The offender would talk to James and even though James could not communicate, the offender established a good relationship with him. Then James passed away. 3The offender commenced to move away from the path that he was on. He is a clever boy who had demonstrated an ability to achieve academically and to maintain employment. But he moved out of home and stopped associating with other worthwhile young men and instead began associating with others who had a superficially attractive lifestyle involving alcohol and nightclubs. 4Sometimes it is said to me that a person moved in with the wrong crowd and I sometimes sceptically wonder whether in fact the person was not the wrong crowd himself. But in this case it does seem to be the case that the offender was influenced by others rather than the offender doing the influencing. And so it came about that the offender then committed a series of offences which I will now describe. 5As I mentioned earlier the offender has pleaded guilty to one offence of break enter and steal but there are a number of matters on a Form 1 which he asks that I take into account when I sentence him. One of those is also a break enter and steal committed on 2 June 2010. The offender and his co-offender broke into some premises by smashing a window and once inside they ransacked a number of rooms before stealing a number of items including it must be clearly noted, items of clear sentimental value. 6One of the other things taken was a credit card so the offender in company with another person used that credit card to buy more than $1,000 worth of clothing. That is an offence of dishonestly obtain property by deception which also appears on the Form 1. 7Some of the property that the offender had taken from the premises he then pawned at a pawn brokers, leading to offences of goods in personal custody suspected of being stolen and furnishing false information to a pawn broker. They are further offences appearing on the Form 1. 8That brings us to 18 June 2010 where the offender committed the substantive sentence for which he must be punished. Once more this was an offence of break enter and steal in company. The offender broke in during the day accompanied by another man. The offenders had removed a fly screen and got in through a window. When the householders returned home that evening it was discovered that the offence had been committed. Contents of wardrobes had been removed and were strewn on the bed and the floor. Drawers were open in an office, with the contents having been strewn on the floor as well. The offender had gone into children's bedrooms taking gaming consoles, games, televisions, DVD's and the like. 9Once more the offender took a large number of items of jewellery of clear sentimental value. He pawned some of those which led to another matter on the Form 1. He was detected by police after being stopped in a vehicle that was registered to him. When police searched that vehicle they discovered a number of items that had been stolen in the break enter and steal offences. A search of his bedroom revealed a number of DVD's. That was the final offence on the Form 1, another offence of goods in custody. 10I suspect that even now the offender does not realise the seriousness of his conduct. Although he used expressions such as remorse when he was giving evidence in the witness box it may well be the case that the offender does not truly appreciate the harm that his offences have caused. The harm that break enter and steal offences like this lead to is found in various aspects of the crime. There is the obvious financial loss to the householders. There is the sometimes more important loss of sentimental items. Whilst it is possible to replace a television for example it is impossible to replace items of a sentimental nature which often have little monetary value. 11The householders also understandably feel anxious and less safe in their homes. Householders generally have responded to offences of this kind by putting bars on windows, and by installing burglar alarms with the result that many householders feel that they are living in fortresses. And finally the community as a whole suffers through insurance premiums being increased to cover offences such as these. The offender certainly did not think about these at the time he committed these offences, and as I said, I doubt that he really appreciates what he has done even today. 12He pleaded guilty at an early stage and so the sentence I impose upon him will be twenty-five per cent less than it would otherwise have been. The fact that there are Form 1 matters of course indicates the greater need to impose a sentence on the offender which will personally deter him than would be the case in the absence of the Form 1 matters. 13After committing these offences the offender has returned to live with his mother and once again began associating with friends who are supportive of him and demonstrate good behaviour, behaviour that the offender should emulate. He is working as much as the weather and the building trade allows him to and he has wishes to go to university as a mature age student. It is entirely possible that this series of serious offences will be an isolated deviation from a law abiding path that the offender will tread in the future. On the other hand it is entirely possible that this is also the start of the offender's criminal career. It is important therefore that I impose a sentence upon him which will bring home to him at a very early stage in his life what is likely to happen to him if he commits further offences in the future. 14Mr Pridis concedes that a custodial sentence is required. He at first submitted that, assuming that the length of the sentence I have chosen would allow me to, I should deal with this by way of a suspended sentence. But this would mean no punishment at all. In fact I suspect it would do the offender no favours. There would be a real risk that he would get the idea that a young man can commit offences of this seriousness and get away with it even after being detected by police. It is in his interests that he be punished so that he might now understand what will happen to him if he offends again. 15Mr Pridis's fall back position was that I would deal with this matter by way of an intensive corrections order. The Crown did not speak in opposition to that as an appropriate way of disposing of this matter. I also consider it is an appropriate sentence. As I explained to Mr Pridis it of course does carry the risk that the offender will be found to unsuitable for an ICO or perhaps even that there will be no place available for him. So there is no guarantee that the offender will not ultimately serve a sentence of full time custody. Much will depend on the results of the assessment which is to come. 16The offender is convicted. I am satisfied that a sentence of imprisonment is required. I am satisfied that that period of imprisonment will be less than two years. I refer the offender for assessment as to his suitability for an intensive correction order as a means of serving his sentence. 17ADJOURNED TO FRIDAY 9 SEPTEMBER 2011 ********** 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. Decision last updated: 31 August 2011