R v AD [2011] NSWDC 134

District Court New South Wales

Medium Neutral Citation: R v AD [2011] NSWDC 134 Hearing dates: 11 March 2011 Decision date: 11 March 2011 Jurisdiction: Criminal Before: Berman SC DCJ Decision: Dealt with according to law. Sentenced to imprisonment imposing a non parole period of 2 years and a head sentence of 4 years. The whole term of imprisonment is to be served as a juvenile offender. Catchwords: CRIMINAL LAW - Sentence - aggravated break, enter and steal. Legislation Cited: Children (Criminal Proceedings) Act Children Criminal Procedure Act Category: Sentence Parties: The Crown AD Representation: Ms J Dwyer - The Crown Mr R J Button SC - Offender Director of Public Prosecutions Aboriginal Legal Service - The offender File Number(s): 2010/00232322 Publication restriction: Under s 15A Children Criminal Procedure Act, there is to be no publication of any material which will connect the offender to any criminal proceedings

SENTENCE 1HIS HONOUR: Whilst on nine probation orders from the Children's Court for offences including break, enter and steal, this offender broke into yet another home, this time where an eighty-seven year old woman lived with her son and daughter-in-law. When he was discovered he pushed past the elderly woman who was standing in the doorway with her walking stick causing her to fall over and suffer injuries which have meant that she can no longer live at home with her family and has now been admitted to a nursing home as a high care patient. 2The leniency shown by courts to the offender in the past has enabled him to commit this most serious crime with most serious consequences. 3The offender had at one stage of his life lived next door to a home where Mrs Dorothy McLean lived with her son and daughter-in-law. On Sunday 2 August 2009 he no longer lived there but he did decide to break into Mrs McLean's home and steal what he could. At about 8:20pm that day Mrs McLean, who was home alone, went to her bedroom, opened the door and saw the offender crouching down behind her bed. He realised that he had been detected. He did not want to be caught, so he jumped up and grabbed Mrs McLean's purse. As I mentioned before, she was standing in the doorway with her walking stick and in order to get away the offender pushed Mrs McLean on her chest causing her to fall down and land on her right hip. The offender ran away leaving Mrs McLean helpless on the floor where she remained for over an hour until her son came home and found her. The offender had taken Mrs McLean's purse and a wallet containing $300 in cash and her pension, credit and Medicare cards, but probably of much more concern to Mrs McLean are the physical consequences of what the offender did to her. It is conceded by Mr Button of senior counsel who appears for the offender that I am able to take these physical consequences into account when sentencing the offender for the offence to which he has pleaded guilty, an offence of aggravated break, enter and steal. Let me describe those consequences: 4As a result of being pushed by the offender and falling Mrs McLean broke her right hip as well as suffered bruising to her right hand and elbow. She needed surgery which not only involved a risk of death but it involved undeniable pain. She remained in hospital until 19 August 2009 and since then has been unable to permanently return to the home where she used to live with her family. Instead, she was first transferred to a rehabilitation hospital and then to a nursing home as a high care patient. She can no longer stand up and can only be moved in a wheelchair. She suffers from health complications which are unrelated to the injury caused by the offender but it remains the case that as a direct result of what the offender did to her she has been unable to live with her family as she used to. As might be imagined this is a matter which greatly distresses Mrs McLean. She has lost the ability to live with her family, she finds it lonely in the nursing home, she accurately describes the position in her victim impact statement when she says, "I was in my own home enjoying an evening to myself where I should have been safe and secure." 5The offender, whilst a juvenile at the time of this crime, was only four months short of his eighteenth birthday. His criminal history contains many offences for which the offender was placed on bonds or probation but as is obvious these did not deter the offender in any way at all. 6More than most the offender had an upbringing which presented many challenges to him. He is an Aboriginal young man born in Bourke, the third eldest child in a family which consisted of his parents and seven children. The family moved to Liverpool in Sydney before his parents split up and they went their separate ways. The offender and his siblings went to live with their paternal grandmother. One of his uncles lived there as well but after he died when the offender was aged ten or eleven the offender and his siblings started to get into trouble. He moved to Wollongong to get away from these troubles and lived with his father and younger brother but other troubles developed. He got in with the wrong crowd and started smoking marijuana. Then his paternal grandmother died and his father, rather than looking after his children, seems to have focused on his own reactions to his mother's death. The offender was forced to take on the responsibility of caring for his younger siblings and when the family left Wollongong after problems between the offender's father and their neighbours he was taken into the care of the Department of Community Services. What followed was a series of foster placements interspersed with the offender living with his father after his father was released from custody and at another time living with another uncle until that uncle also died. Once again the offender began living with various relatives, foster carers and friends. It was in those circumstances that he committed the present offence. The most stable time of the offender's life appears to have come about only after he was placed in Juvenile Detention following his arrest for this matter. Since then he has undergone a remarkable change. He is described as a role model detainee who consistently demonstrates excellent behaviour. He also wants to be a role model for his younger brother and does not want to follow the path taken by his older brothers, one of whom is in an adult gaol with the other brother on the run wanted by police. Also, whilst in custody he has now successfully engaged in the education system for the first time to the extent that he has received awards for excellent participation, merit awards for academic work and merit awards for excellent behaviour and effort. He also appears motivated to remain drug free when he re-enters the community. He has plans for the future too. His mother gave evidence before me that she and her partner would like to have the offender living with them in the Newcastle area upon his release from custody. He wants to get a job. He has completed his school certificate as well as TAFE courses which would make him eligible for employment in the construction industry. Nor does it appear that the offender will be left to fend for himself upon release, after care services are available to assist the offender in re-entering life in the community. 7It is clear that the offender did not intend that Mrs McLean would fall to the ground let alone suffer serious injuries and the consequences which resulted. His intention was simply to get away because he had been discovered committing, once again, a serious criminal offence. Of course, he should have helped her once he realised she had fallen over, something that he now realises but at the time he just wanted to escape. 8A report by Susan Hayes suggests that the intellectual disability which the offender suffers may be relevant as to why it is that he both pushed past Mrs McLean and did not help her once he realised she had fallen over. Dr Hayes says it appears that his impulse to flee overrode his cognitive reasoning abilities. I admit to having some trouble with that conclusion. What is required when one has pushed over an elderly woman who is lying helpless on the ground is not cognitive reasoning abilities but compassion. 9When this matter first came before me I was told that there was some urgency in having the matter dealt with because the length of time the offender had spent on remand in custody was such that the sentence to be imposed upon him would see him released immediately or very soon thereafter. However, at that time no action had been taken to deal with the breaches of the nine probation orders imposed on the offender in November 2008 and June 2009. I was asked to adjourn the matter for a short time so that inquiries could be made as to whether the Department of Juvenile Justice would bring the breach of those probation officers to the attention of the judicial officers who impose them. I confess to being puzzled by this suggestion. In what circumstances could it ever be the case that the Department of Juvenile Justice would take it upon themselves to keep from a judicial officer the fact that a probation order imposed by that judicial officer had been breached by the commission of such a serious offence? I wish to say quite clearly that in my view the Department of Juvenile Justice should have no such discretion. What may be thought to be the product of concern from an individual offender is capable of harming other offenders, is capable of leading to other offenders not receiving bonds and probation if judicial officers are not confident that breaches of such orders are reported to them. If I thought that I would not be told that a breach of a probation order or a bond that I had imposed would be reported to me then I would be much less likely to make such an order in the first place and accordingly much more likely to impose a full time custodial sentence. 10In any case this matter was adjourned so that the breach of the probation orders could be brought to the attention of the judicial officers who imposed them. I was comfortable adjourning the matter because in my view, despite the submissions suggesting that the matter should be dealt with urgently, I was satisfied that the period the offender had spent in custody at that stage, slightly more than eighteen months, was insufficient to reflect the objective gravity of the offender's crime even taking into account such things as his chaotic upbringing, what was said to be his intellectual disability and the remarkable change in his outlook and behaviour. As it turns out when the matter resumed today I was told that there was no action taken by the judicial officers on the breach of bonds. To me that appears to be an unusual decision but one which I must accept. Accordingly, the sentence that I impose upon the offender will commence on 3 August 2009, the day on which the offender was arrested and taken into custody. 11The Crown helpfully provided me with some comparative cases, cases where elderly, usually women it must be said, have suffered through the commission of offences such as these. However, I have to bear in mind a matter that the Crown frankly conceded I must apply the principles contained in the Children (Criminal Proceedings) Act and in particular s 6 of that Act. Those principles, of course, did not apply to any of the people sentenced in the decisions to which the Crown referred me. Amongst the important matters which guide and in fact bind me in sentencing this offender, I must remember that although the offender bears responsibility for what he has done he also needs guidance and assistance because of his immaturity and state of dependence. I must also bear in mind that it is important that the offender be assisted with his reintegration into the community so as to sustain family and community ties. 12Of course, there is another principle which applies as well. Consideration should be given to the effect of any crime on the victim of that crime. As has been obvious the effect of this crime on Mrs McLean has been enormous. Indeed, there is evidence that the offender, himself, recognises that. 13His plea of guilty is not the only evidence of remorse in this case. Remorse is also demonstrated in other evidence, in particular the offender himself described his actions as shameful. 14At one stage there seemed to be some dispute as to the appropriate discount that should be allowed for the offender's plea of guilty, at least insofar as the utilitarian benefit of that plea was concerned. This was one of those relatively common cases where an offender offers to plead guilty to a lesser charge than that laid against him, that offer is rejected and so the matter proceeds as if it is to be a trial matter. But eventually the prosecution accepts what it could have accepted earlier, that is, the plea of guilty to the lesser charge. The offender has done what he can to provide the maximum utilitarian benefit to the criminal justice system and so I will discount the sentence I would otherwise have imposed by twenty-five per cent to reflect that circumstance. 15There are clearly special circumstances in this case. Indeed, it would be hard to imagine a person sentenced in accordance with s 6 who did not have special circumstances found in his favour. There has been a remarkable change in the offender and he is a much different person to the person he was when he caused that significant injury to Mrs McLean. An extended period of supervision on parole will do as much as can be done to ensure that the progress that the offender has made whilst in custody continues once he is no longer in custody and away from the direct influence of those in the Juvenile Justice system who have his welfare firmly in their minds. 16It is clear, ultimately, that even in the case of sentencing an offender who was a child at the time of committing the offence it is important to bear in mind the objective gravity of what that person has done. It is inappropriate to focus on an offender at the expense of the offence, both the offender and the offence must be considered when determining a sentence to be imposed. In this case notwithstanding those many matters which I have mentioned which work in the offender's favour, it remains the case that he must be significantly punished for what he has done. A significant period of imprisonment is therefore required. It was conceded that the offender should be dealt with according to law. Accordingly, the sentence I impose is this. 17The offender is sentenced to imprisonment. I set a non-parole period of two years to date from 3 August 2009. It will expire on 2 August 2011. I set a head sentence of four years. The offender is thus eligible to be released to parole on 2 August 2011 and I make an order under s 19 of the Children (Criminal Proceedings) Act that the whole of the term of imprisonment is to be served as a juvenile offender.