R v JEFFREYS; R v BURFITT [2011] NSWDC 136

District Court New South Wales

Medium Neutral Citation: R v JEFFREYS; R v BURFITT [2011] NSWDC 136 Hearing dates: 30 June 2011 Decision date: 30 June 2011 Jurisdiction: Criminal Before: Berman SC DCJ Decision: Jeffreys - sentenced to an overall term of imprisonment consisting of a non parole period of 2 years and a head sentence of 4 years. The offender is referred to the Drug Court for consideration as to the making of a compulsory drug treatment order. Disqualifed from driving for 3 years. See paragraphs [25] & [30] Burfitt remanded under s11 Crimes (Sentencing Procedure) Act. See paragraphs [26] - [29] Catchwords: CRIMINAL LAW - Sentence - Form 1 - Stealing motor vehicle - Aggravated break, enter and steal - In company - Not stopping - Driving dangerously during police pursuit - Drive while disqualified - resist officer in the execution of duty - Possess house breaking implements - Entering enclosed lands - Conditional liberty at time of offending Cases Cited: R v Ponfield [1999] 48 NSWLR 327 Category: Sentence Parties: The Crown Paul Andrew Jeffreys Daniel Robert Lloyd Burfitt Representation: The Director of Public Prosecutions V L Macri Lawyers - Offender Burfitt Legal Aid Commission - Offender Jeffreys File Number(s): 2010/265913 2010/266006

SENTENCE 1HIS HONOUR: Paul Jefferys and Daniel Burfitt appear for sentence today after they each committed a number of offences on 10 August 2010. They knew each other at that date but not well. There is a significant difference in their ages, but what they had in common was that they were both reasonably heavy users of the drug ice. They also had in common - this is of course related to the fact that they were using that drug - that their lives had taken a turn for the worse. They were at a mutual friend's house using the drug when they jointly decided to commit a crime of some description in order to obtain money so that they could purchase more drugs. 2The evidence would suggest, and I accept, there was no great plan as what the offence would be. Mr Burfitt, for example, gave evidence that he thought they were going to go and steal some metal for scrap and to that end they took from their mutual friend's home a bag containing some bolt cutters. However, it would seem that once the two offenders left the premises they firstly stole a car and then drove around trying to work out which particular offence they would commit. They came across a supermarket, this was in the early hours of the morning, but the lights were on. The evidence is, and I accept, that both offenders believed that the premises would be unoccupied. They decided to break into the supermarket and that is what they did, using one of the tools that they found in the car they had stolen. They jemmied open a sliding door and went to the service counter where they began to gain access to the locked compartment where cigarettes were stored. They were clearly intending to carry out a few because they had obtained what I would call a wheelie bin on the way and they began putting cigarettes in those packets. In fact, unbeknownst to them, there were people inside the premises. Three staff members were filling the shelves. They approached the offenders, surprising them. Both offenders then ran away leaving behind the wheelie bin and the cigarettes. They then went back to the stolen motor vehicle, a Toyota Hilux. Mr Burfitt entered the passenger side, Mr Jefferys was driving. 3Police were called and not long afterwards the offenders were detected in the stolen Toyota Hilux in Balmain. The police attempted to stop the Hilux but Mr Jefferys, who I repeat was the driver, did not stop. He drove in a very dangerous manner, driving along the wrong side of the road, in the wrong direction up one way streets, at somewhere between seventy and eighty kilometres an hour in a fifty kilometre per hour zone, performing a U-turn over a median strip, until finally he ended up in a dead end street. Police stopped the vehicle that they were driving. Mr Jefferys and Mr Burfitt got out of the stolen Hilux and ran away. 4Mr Jefferys did not give himself up quietly either. He was being chased through some streets when he turned around and ran straight at a female constable causing her to fall backwards and causing the offender to fall over. He got up and ran away again but he was caught up by the female constable, who forced him to the ground. Other police arrived. The offender continued to struggle until eventually he gave up. Mr Burfitt on the other hand gave up a bit more quietly after he had been discovered hiding in some residential premises. 5As a result of all that criminal activity the offenders face a number of offences. Mr Jefferys has been charged with and pleaded guilty at an early opportunity to an offence of stealing the motor vehicle, that carries a maximum penalty of ten years imprisonment. He has been charged with the offence of aggravated break enter and steal, the circumstance of aggravation being relied on by the Crown is that he was in company with Mr Burfitt. That is an offence that carries a maximum penalty of twenty years with a five year standard non-parole period. That standard non-parole period is of course not of direct application because of the plea of guilty, but it remains as an important guidepost to the sentence I should impose. Mr Jefferys also pleaded guilty to an offence of not stopping and driving dangerously during a police pursuit, an offence that carries a maximum penalty of three years imprisonment. 6There is also a matter on a 166 certificate, that is an offence of driving whilst disqualified because Mr Jefferys in fact was a disqualified driver at the time of these offences. As well as those offences there are two offences on a Form 1, that Form 1 being attached to the aggravated break enter and steal offence. Those Form 1 offences are resisting an officer in the execution of her duty and possessing housebreaking implements. 7Turning now to Mr Burfitt. He also has pleaded guilty to an offence of aggravated break enter and steal. He is not charged with stealing the motor vehicle or driving dangerously during a police pursuit, but is charged with being carried in a conveyance taken without the consent of the owner. That is an offence with a maximum penalty of five years imprisonment. He also has two matters on the Form 1 attached to his offence of aggravated break enter and steal, they being possessing housebreaking implements and entering enclosed lands. 8Mr Jefferys is currently in custody. He was arrested on 10 August but has been serving a sentence for an unrelated matter, that sentence will expire on 8 August this year and so it is agreed that I should commence any sentence I impose upon him from 9 August, of course taking into account the principle of totality. The sentence that Mr Jefferys is currently serving is for a driving whilst disqualified offence. He was in fact on a suspended sentence for that matter at the time of committing this offence as well as being on bail for other offences. Mr Burfitt was also on conditional liberty at the time. In his case he was on a twelve month s 9 bond for two counts of destroy or damage property as well as being on bail. 9Before I turn to the subjective features of each offender I should say something about the objective gravity of the offence carrying a standard non-parole period. I find that it is significantly below the middle of the range of objective gravity for offences of this type. In that regard of course I take into account in particular that the circumstance of aggravation relied on by the Crown, namely that the two offenders were in company, is one of the least serious of the circumstances of aggravation that can apply, and that the indictable offence the offenders committed, namely stealing, is also one of the least serious offences that can be committed. The two offenders, I have found, did not expect there to be anyone in the premises and they were attempting to take property from non-residential premises, thus the items they intended to take would have had no sentimental value. Another matter of course is that whilst the concept of asportation provides that the offenders committed the offence of stealing, as I have mentioned they had to leave the cigarettes behind when they were surprised by the staff members. 10There are other circumstances not present which would make the offences more serious, those having been discussed in the case of R v Ponfield [1999] 48 NSWLR 327 . This was not a case of repeat incursions. There was no harm inflicted upon any person and the offence does not appear to have been accompanied by significant damage. The only damage caused seems to have been occasioned when the offenders gained entry to the premises. 11Mr Jefferys is now forty years of age. He has a lengthy criminal history but for relatively less serious matters, almost all concerning driving. Indeed this appears to be the first occasion on which he has been dealt with in the District Court. He has served sentences of imprisonment in the past, the last sentence before his present period of incarceration ending in 2003. He is a man who, I think it is fair to say, never expected to find himself in his present predicament after leaving gaol in 2003 and doing much that he can be proud of, including setting up his own business. I will return later to the circumstances in which these crimes were committed later. 12The offender is one of four children. His parents separated when he was about seven and he has only seen his biological father once since then. Mr Jefferys' mother formed a new relationship. Mr Jefferys' stepfather was not only physically abusive but also a gambler and he encouraged Mr Jefferys to commit crime so that he could support his gambling. His mother was also a gambler and at one stage they had to move houses, as his mother had lost the house that they owned. As his criminal history reveals, he commenced committing crimes at a relatively young age. He left school in Year 11 because he realised that he was wasting his time. He was often disciplined at school because of his disruptive behaviour. He has had a number of relationships, some of which have been to Mr Jefferys' detriment. But his children remain very supportive of him, and indeed they are present in Court as I speak. 13Mr Jefferys commenced drinking alcohol at the age of thirteen at which stage he also first tried cannabis. He has experimented with other drugs, in particular amphetamine in its various guises, including ice. He has perhaps more than most had to deal with some distressing events in his life. Let me illustrate that by explaining what happened after Mr Jefferys left gaol in 2003. He started a business, recognising that he had had enough of committing crimes. Initially he was in fencing but then moved to excavation. He was able to finance some equipment and was earning good money. He did commit a driving offence in 2006 but apart from that he was living a law abiding life and, most importantly, he was staying away from drugs. 14However, things went dramatically downhill. Mr Jefferys said he simply fell apart when his best mate committed suicide and he split up from his partner. He stopped going to work, eventually selling the machinery at a loss. He now recognises that he should have, despite these challenges, stayed away from drugs, but in the weeks leading up to the offence he said he was on drugs all the time. At that time he had been selling off his tools in order to finance his drug habit, but at the time of the offence he had nothing left to sell. 15He has plans for his release from custody. He intends to pick up where he left off. There is material before the Court suggesting that Mr Jefferys is a good worker, at least when he is not using drugs, and I expect that if he wanted he would have no trouble getting further employment upon his release from custody. He is remorseful for what he has done. As I mentioned he left gaol in the belief that he would never return, but his remorse is not only for the circumstances that he now finds himself in. I am satisfied that he has accepted responsibility for his offending and its effect upon the victims of it. I cannot say that there are good prospects for the offender's rehabilitation, much will depend on how he responds to the challenges he will no doubt face in the future. The problem with drug addiction is that it is not an easy matter to overcome. There will be aspects of Mr Jefferys' life upon his release from custody which will lead him to be tempted to take drugs again. There are indications that there is substantial hope for the future and substantial hope that Mr Jefferys will respond in a more positive way to those challenges than he did in the time leading up to his commission of these offences. 16The principle of totality applies, not only to the fact that the sentences I will shortly announce are accumulative on an existing sentence but also as regards each of the offences I must sentence Mr Jefferys for today. Perhaps the best way that I can give effect to that principle is to make the sentences for the driving offences, including the stealing motor vehicle offence, concurrent, but accumulate the sentence for the aggravated break enter and steal on top of those offences. Because of the offender's plea of guilty each sentence will be twenty-five per cent less than it would otherwise had been. 17I make a finding of special circumstances in Mr Jefferys' case. The fact that in 2003 he was able to work for a number of years and not get seriously into trouble with drugs does suggest prospects for the offender's rehabilitation. But in this regard it more importantly suggests the need for an extended period of supervision whilst on parole. In discussing the appropriate sentence to impose upon Mr Jefferys with his lawyer, Ms Hawkins, attention was focused on the possibility of referring the offender to the Drug Court for assessment as to the possibility that he could be subject to a compulsory drug treatment order. I would not want anyone to think that that was the starting point of the sentence I should impose. It is, of course, my task to determine the appropriate sentence without looking at the criteria for eligibility for a compulsory drug treatment order and only if it turns out that the offender is eligible for such an order should I refer him. Nevertheless, sentences that would make the offender eligible were, in the submission of both the Crown and Ms Hawkins, appropriate in the circumstances of this case. 18I should say something about parity. It does not really apply at this stage because of the order that I will ultimately make in the case of Mr Burfitt, who will not be finally sentenced today. So I cannot really take into account any question of Mr Jefferys feeling a justifiable sense of grievance when he compares the sentence imposed upon him with a sentence imposed upon Mr Burfitt because I do not know what the sentence of Mr Burfitt will be. I will sentence Mr Jefferys at the end of these remarks. 19I now turn to the case of Mr Burfitt. He has a shorter criminal history than Mr Jefferys but one which has more serious offending on it. In particular, there is an offence of aggravated robbery and inflict actual bodily harm for which he received a significant period of imprisonment in 2007. And given the most serious offence committed by the offender for which I must sentence him today there is the significant circumstance that he has earlier committed an offence of break enter and steal. He received imprisonment for that offence from the Liverpool Local Court. 20He has been under the supervision of the Probation and Parole Service on many occasions. The pre-sentence report tendered in his case reads this way: "All sources agree that Mr Burfitt's previous response to supervision has been superficial. His performance has been marked by non-compliance, ongoing drug use and re-offence". 21Despite that rather gloomy assessment there is one particular matter which has led to me deciding, without opposition from the Crown or opposition from Mr Fung who appeared for Mr Burfitt, to adjourn this matter under s 11 of the Crimes (Sentencing Procedure) Act . That matter is this. The offender was in custody bail refused for seven months and twenty days. He made efforts to find a place in a residential rehabilitation program at the Glen Centre. He was released from custody and commenced the residential rehabilitation program until he was asked to leave because he acted aggressively towards a staff member. Notwithstanding that conduct the evidence is that the Glen Centre will have him back. Indeed, the letter says, "We are happy to accept Daniel back into our program for another opportunity." 22Mr Burfitt is much younger than Mr Jefferys, he is twenty-four years of age. He, as I mentioned earlier, committed this offence in circumstances where he was a heavy user of the drug, ice. The Probation and Parole officer has noted a significant physical change in the offender. Although he says that he was unable to conduct urine analysis, he does note that the offender has gained at least twenty kilograms since his last entry into custody which would support his contention of current abstinence from amphetamines. The offender's desire and willingness and indeed enthusiasm to enter further residential rehabilitation is indicative, I am satisfied, of a genuine wish that he put drug use behind him. If he can do that then not only does Mr Burfitt benefit but so does the community. He is a relatively young man and if I can fashion orders which have the effect of rehabilitating Mr Burfitt then the community benefits to a significant extent. 23Of course, rehabilitation is not the only matter which I have to consider. I must also ensure that Mr Burfitt is punished not only as a personal deterrent to him but also as a means of general deterrence so that others in the community who might be tempted to commit offences such as this are deterred from doing so. In this regard, I note that the offender has done seven months and twenty days in actual custody, a number of months in quasi custody and it is envisaged that he will do more time in quasi custody by the time he comes back before me to be finally sentenced. It could not be said therefore that the offender has thus far gone completely unpunished for his offending. He too expressed his remorse in evidence today and accepts that he needs to deal not only with his illicit drug use but other aspects of his behaviour, including in particular the need to manage his anger. In this regard it is important to note that whilst the offender's partner has stated her willingness to maintain a relationship if Mr Burfitt remains abstinent of illicit drugs, the offender will need to do more than that. The pre-sentence report says that the relationship has been seen as dysfunctional and characterised by domestic violence and disharmony. The offender will need to work on this aspect of his life as well as his drug use, although in truth they are probably interrelated. 24I should mention also that the offender also pleaded guilty at the earliest opportunity so he is entitled to the maximum discount for the utilitarian benefit of his plea. In his case, I will not quantify it because it is one of the factors that has led to me doing what I will shortly announce, that is, remand the offender pursuant to s 11 of the Crimes (Sentencing Procedure) Act . 25The sentences I impose on Mr Jefferys are therefore these. Mr Jefferys would you mind standing up please. For the offence of stealing a motor vehicle, driving dangerously during a police pursuit and driving whilst disqualified, I sentence Mr Jefferys to imprisonment for a fixed term of one year to date from 9 August 2011. That is a fixed term because of the sentence I will announce on the other matter. On the offence of aggravated break enter and steal the offender is sentenced to imprisonment. I set a non-parole period of one year to date from 9 August 2012 and a head sentence of three years. The overall sentence is thus one consisting of a non-parole period of two years with a head sentence of four years to date from 9 August 2011. I refer Mr Jefferys to the Drug Court for consideration as to the making of a compulsory drug treatment order. Thank you, Mr Jefferys, you can sit down. 26In Mr Burfitt's case, I remand him until, 18 November. 27I order an updated pre-sentence report for that date. I remand Mr Burfitt under s 11 of the Crimes (Sentencing Procedure) Act . 28The conditions of Mr Burfitt's remand are these: He is to be of good behaviour. Unless he is at the Glen Centre as part of the residential rehabilitation program he hopes to enter he is to live at an address provided to the Court. He is to use all his endeavours to obtain admission to the Glen Centre residential rehabilitation program and if accepted he is to obey all of the requirements imposed upon him by that rehabilitation centre. He is to use no illicit drugs whatsoever. 29If he is not accepted into the Glen Centre rehabilitation program by 30 July he is to bring this to the attention of the Court and have the matter immediately re-listed before me. 30Mr Jefferys, I have just got to do one other matter with you that just concerns your disqualification. For the offence of disqualified driver appearing on the 166 certificate and for the offence of not stopping and driving dangerously in the police pursuit the offender is disqualified from driving for a period of three years. That period to be served concurrently and to date from the expiry of the last period of disqualification to which the offender is subject, if that has already expired then the disqualification is to date from today.