District Court New South Wales Medium Neutral Citation: R v Bonifasous REUTER [2012] NSWDC 178 Decision date: 15 February 2012 Before: Cogswell SC DCJ Decision: For two offences of aggravated break, enter and steal - 2 fixed term sentences of 18 months imprisonment. For armed robbery - 3 ½ years imprisonment. Aggravated break, enter and steal sentences concurrent with armed robbery sentence. Effective overall sentence - 3 ½ years. Fix a non-parole period - 1 year and 9 months. Catchwords: CRIMINAL LAW - Sentence - relevant factors - prior criminality - no criminal record - unlikely to re-offend due to family support, employment and no drug or alcohol problems - response to charges - early plea of guilty - profound remorse - nature and circumstances of offender - good character - strong work ethic - parity - co-offender had significant criminal record and committed offence whilst on conditional liberty - non-parole period - special circumstances - young, first time in custody, need for continuing family support in rehabilitation - purpose of sentence - protection of community - victim impact statement - sentencing guideline - Henry factors. Legislation Cited: Crimes Act 1900, s 97(1) and s 112(2) Crimes (Sentencing Procedure) Act 1999, s 32 Cases Cited: Muldrock v The Queen (2011) 85 ALRJ 1154; [2011] HCA 39 R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 Category: Sentence Parties: Regina (Crown) Bonifasous REUTER (Offender) Representation: Solicitor: Director of Public Prosecutions (Crown) I Bruce (Offender) File Number(s): DC 2010/409886 SENTENCE 1I am sentencing a young man who, as his lawyer Mr Bruce said, went off the rails seriously for a period of about ten months in 2010. Between March and August 2010 he committed a robbery in company and three break, enters and steal and one break and enter with intent to steal. He is a 20 year old man with absolutely no criminal record in his past. 2As Mr Bruce realistically acknowledged, I have to sentence him to gaol but I need to balance out the important purposes of sentencing a person - including being accountable for the crime which he committed, making sure he is adequately punished for that crime and protecting the community. But as well as that, I need to take into account his rehabilitation as a young man. 3The young man's name is Bonifasous Reuter and he pleaded guilty at an early stage to the crimes which he committed. 4What I am sentencing him for are two crimes called aggravated break, enter and steal. They are offences against section 112(2) of the Crimes Act 1900. They carry a maximum of 20 years imprisonment. Not only that, Parliament has seen fit to fix a standard non-parole period to each of those crimes of 5 years imprisonment. I am also sentencing him for the crime of robbery whilst armed with an offensive weapon. That is an offence against section 97(1) of the Crimes Act and carries a maximum of 20 years imprisonment. My earlier reference to robbery in company should have been a reference to armed robbery. 5When I am imposing the sentence for the armed robbery, he has asked me to take into account two other crimes which will be reflected in the sentence which I impose for the armed robbery. One of those crimes is a break, enter and steal and the other a break and enter with intent. I will take those two offences into account. Mr Reuter has signed a document under section 32 of the Crimes (Sentencing Procedure) Act 1999 and I sign the same document. 6It is important for a judge to set out briefly just what happened, so far as the criminal activity is concerned, that led to a person being charged. The earlier offence in time was the armed robbery. That was committed at about 11 o'clock on the evening of 25 March 2010. Ms Narelle Waters and two of her colleagues were at the Caltex service station at Maryland. They were closing up. Mr Reuter and Mr Lang came into the store wearing hooded jumpers and their faces were covered. Mr Reuter was holding a fake pistol and Mr Lang had a machete. They demanded to know where the money was and were directed to the till. The safe was apparently locked. They wanted cigarettes but they were not available. The till was empty and they took just under $500. 7Mrs Waters provided a victim impact statement setting out the impact which that crime had on her. She described herself as a wife, mother and grandmother working hard to provide for her family and make the best for them. She had a good rapport with her workplace. She said that all of this "has been shot down in flames" when she was held up. She finds it hard to go to social gatherings where young people are with hooded jackets. She feels insecure at night time outside. She talks about the nightmares which she has. She finds she is quick to judge people whereas before she treated all people equally. She clings on to her handbag if she is going to the shopping centre with her grandson. She has had to have counselling to help her through the trauma. Her friends help her as well. Some of the emotions and problems that she describes herself with are paranoia, anxiety, panic, being scared, being angry, moods and being teary. It is important to set out the impact which a crime, such as the one that Mr Reuter with Mr Lang committed, can have on an ordinary individual going about their job in the community and the long term impact which such an offence can have on the life of an innocent other person. 8It is also important to bear in mind the importance of protecting the community from crimes such as that by incapacitating Mr Reuter from doing it again, but also of stopping others - by the sentence which I impose - from thinking about that sort of crime. Unfortunately Ms Walters' graphic description of the impact which this crime has had on her is not unusual for a judge to read but it is important to acknowledge the impact which it has had. 9The two crimes which I take into account when I am sentencing Mr Reuter for the armed robbery are to do with breaking and entering. One was committed a couple of months later on 14 May 2010, where Mr Reuter broke into an office in Newcastle. A rock was thrown through the glass doors and a plasma television was taken but dropped, causing it to be damaged. A computer was also taken. In addition, some months later on 27 August 2010, Mr Reuter was involved in an attempted break and enter at another building where the front doors were again smashed. An attempt was made to remove a plasma television but it was unsuccessful and the offender abandoned the effort. As I said, I will take those two crimes into account in sentencing Mr Reuter for the armed robbery. 10The two aggravated break, enter and steal offences which I am sentencing Mr Reuter for occurred some hours apart. The first was a little before midnight on 26 August 2010 and the second was about 2:00am on 27 August 2010. The first one was a break and enter at the Joyce Mayne store at Rutherford. A man was seen earlier in the evening looking at the store. At just before midnight Mr Reuter, with two other offenders - a Mr Britt and a Mr Lang - returned there and smashed the glass panel of the store and got in. Inside, they smashed cabinets containing electrical items. They took a variety of electrical items. This included cameras, video cameras, mobile phones, flat screen televisions. They drove off. The next day when the CCTV was viewed by one of the members of staff, the three offenders, including Mr Reuter, were identified as the three men who had been seen at about 7 o'clock earlier that evening, so that offence involved some hours of planning. 11A few hours later, just before 2 o'clock, Mr Reuter and again Mr Britt and Mr Lang smashed into the Switchboard store at Glendale. Again they smashed a number of cabinets. They stole items including clothing, sunglasses, a wake board and some cash. Police intercepted phone calls - because Mr Lang's phone had been lawfully intercepted - and there were discussions, mostly initiated by Mr Lang, between Mr Lang and the others regarding what they would do about disposing of the goods. 12I turn now to say something about Mr Reuter himself. Not only is it important for a judge to set out the facts of the crimes which an offender has committed and the impact on the victims, it is also important in sentencing that the judge takes into account factors personal to an offender. It is one thing to sentence an experienced criminal with a long criminal record for the same crimes; it is another thing to sentence a young man with no criminal record who, like Mr Reuter, has committed a serious crime. 13I repeat, Mr Reuter has no criminal record whatsoever. 14There is a helpful presentence report prepared by Annette Caffery of the Lake Macquarie district office of the Probation and Parole Service. Ms Caffery's summary of the report reads as follows - "Mr Reuter presents as a somewhat shy and introverted man, incongruent with the nature of the offence. Whilst he has made significant gains in his life since the commission of the offence and continues to enjoy the support of his family, it would appear that significant negative choices and attitudes attributed to his current predicament. As such, it is the passage of time that is the test that positive behaviour changes occurred." 15Mr Bruce who, as I said, appeared for Mr Reuter, called his client to give evidence. He indicated that he appreciated the impact which the crime had on the victims of the offences. He said he could not forget the faces of the people involved in the armed robbery. He was prepared to pay compensation in respect of the break, enter and steal offences. He is well supported by his family. His father, mother and sister and aunt were in court. At the time that he committed these offences, he said he was in a particularly low point in his life. He had even considered committing suicide. In fact, to his credit, two months after this offence he got help from a psychiatrist. There has been, he said, a significant change in the last 18 months. He is now back in full time work as a machine operator and is undertaking some courses to qualify himself. He fully accepts responsibility for the crimes he committed and ... HIS HONOUR: Am I reading ...You are quite right thank you. I am sorry, my associate has drawn my attention to the fact that I am reading from the wrong - I apologise and I apologise to your family - I will start again. I have referred to Mr Bruce calling his client. Let's start again. 16Mr Reuter comes from a strong family. His father is Dutch, his mother is from the Philippines. He was himself born in Australia. He has three brothers and is employed in driving rollers on the road. He left school at the age of 15. He had already secured part time work earlier when he was 14 years of age at school. He experienced a little racism because of his mixed ethnic background and got into some fights but not major ones. He has maintained steady employment up until the sentence proceedings which were last week. He has always had a problem with literacy and had trouble in reading and writing. He did an apprenticeship as a chef but did not continue with that because he could not get on with his employer. He met Mr Lang at school and Mr Britt he has known all his life. 17He acknowledged that he had committed a series of very serious crimes between March and August 2010. He in fact was arrested on 9 December 2010 and spent 14 days in custody, bail refused. He spoke about the scary impact which that period in custody had on him. He repeated, as I said, that he would remember the faces of the victims of the armed robbery and said that, although he knew that it was a fake gun, they did not. That is an important insight. He is working on his literacy and working hard, taking home some $700 a week. 18Cross-examined by Ms Wand, who appeared for the Director of Public Prosecutions, he acknowledged that he himself does not take drugs and does not take alcohol and he is working on the licences he needs for qualifications to work on the roads. Asked why he committed the crimes of breaking and enter and stealing as well as the armed robbery, he said it was a lack of money and he could not get jobs to get decent money at the time. 19Mr Bruce also called Mr Reuter senior, who is Mr Reuter's father. Mr Reuter explained how he and his wife had worked hard to give their whole family a very decent education and upbringing. They instilled in their family a philosophy of working rather than living off welfare. The importance of working for a living was emphasised in the family and it is clear that it has been passed on to Mr Reuter, whom I am sentencing. Mr Reuter senior, when he realised about the bad influence of Mr Lang, cut communications with Mr Lang. He indicated that the family would support his son absolutely when he left prison and support him into the future and continue with the values which have been instilled so far. 20Mr Reuter junior has always lived at home. Mr Reuter senior explained that his son had complained to him about the experiences which he had in prison and how unpleasant they were. He said that his son had many times expressed regret about the victims of the robbery and wished that he could reverse time and that he would never forget the peoples' faces. 21As I said, Mr Bruce realistically acknowledged that his client must go to gaol. That follows, in a way, from one matter which I have not yet referred to and that is that one of the co-offenders Dylan Lang has already been sentenced. The Chief Judge, Blanch J, sentenced him on 21 September 2011. His Honour sentenced Mr Lang for the same three crimes that I am sentencing Mr Reuter for. In Mr Lang's case his Honour also took into account two matters under section 32 of the Crimes (Sentencing Procedure) Act but, significantly, Mr Lang had a significant criminal record which included armed robbery offences and aggravated robberies. His Honour, also significantly, found in appropriate terms at that time that the two offences of break, enter and steal fell below the mid range of objective seriousness. His Honour imposed, for each of the two offences of break, enter and steal, fixed terms of 2 years imprisonment. The two fixed terms were partly accumulated so that, in effect, there was a sentence of 3 years for the break, enter and steal. Taking into account the other matters in sentencing Mr Lang for the armed robbery, his Honour sentenced him to 7 years imprisonment with a 3 year non-parole period. It is, as I said, important to take into account that Mr Lang had a very serious criminal record. 22Mr Bruce correctly pointed out that since that sentence, the High Court has delivered its judgment in Muldrock v The Queen (2011) 85 ALJR 1154; [2011] HCA 39 and I have taken that into account. 23I accept the following submissions. I take into account the fact that Mr Reuter has no criminal convictions. I take into account that he is a young man of good character with a strong work ethic. I take into account that his family support and employment mean that he is unlikely to re-offend. I take into account that the same factors, plus the fact that he has no drug and alcohol problems, means that his prospects of rehabilitation are also good. He has expressed, I agree, profound remorse. He has pleaded guilty at what Ms Wand agrees is the earliest available opportunity and should have the full discount in respect of that plea. 24I agree that Mr Reuter senior was an impressive witness and I am confident that the family will fully support Mr Reuter when he is released. 25I also agree that Mr Lang appeared to be the main leader in the criminal enterprises. 26Mr Bruce drew my attention to the guideline judgment delivered by the Court of Criminal Appeal in R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 and many of the factors of this case correspond with that guideline judgment. It is acknowledged that the weapon which Mr Reuter had was not itself capable of killing or inflicting serious injury. Objectively that is important to note but of course subjectively the victim did not realise that it was a fake. 27Ms Wand fairly acknowledged the entry of the early plea and the submissions about the impact of the guideline judgment. She acknowledged the fact that the co-offender Mr Lang had a serious criminal record but who was also, which I have not yet observed, on conditional liberty at the time that he committed the offence which is also an aggravating factor. She acknowledged, as Mr Bruce had submitted, that there are special circumstances for adjusting the usual or standard ratio between a non-parole period and a full time sentence. Normally a person must serve in gaol 75 per cent of their sentence. Mr Bruce had submitted that his client was young, immature and this was his first time in custody and he needed the continuing support of his family in his rehabilitation. I accept those submissions as Ms Wand acknowledged. She acknowledged the remorse which he had expressed. She correctly drew my attention to the importance in sentencing of protecting the community and preserving its safety and recognising the harm done to members of the community through the crime. 28I have taken all these factors into account. The guideline judgment suggests that for the kind of offence which was described in that judgment, the sentence should generally fall between 4 and 5 years for the full term. That of course does not take into account the impact of the plea of guilty since the decision in Henry being acknowledged to be 25 per cent. I therefore would regard an appropriate overall sentence for this offence as being a sentence of three and a half years imprisonment. For a sentence of 3 ½ years imprisonment or 42 months, the non-parole period which would normally be served is 75 percent of that which is some 2 years and 7 months. I propose to reduce that to 50 per cent instead of 75 per cent so that the non-parole period for Mr Reuter will be 21 months, that is 1 year and 9 months and, as I said, I have taken into account the matters on the Form 1. 29In respect of the two offences of breaking and entering and stealing, Mr Lang the co-offender received 2 years imprisonment. Taking into account that in Mr Reuter's case he did not commit the offence whilst on conditional liberty and did not have prior criminal records, I propose to fix sentences of 18 months which I will accumulate by 1 month. The overall sentence will be 42 months and the minimum time that Mr Reuter will have to stay in prison will be 21 months. HIS HONOUR: Now I will just pause there. I need to backdate the sentence by 14 days. BRUCE: 27 January. HIS HONOUR: 27 January is it? Thank you. 30I take into account, in making the aggravated break enter and steal sentences concurrent with the armed robbery offences, that Blanch J did the same in respect of the offender Lang. HIS HONOUR: I am going to sentence you now Mr Reuter. 31In respect of the aggravated break, enter and steal - the Joyce Mayne complex - I sentence you to 18 months imprisonment to commence on 27 January 2012 and to expire on 26 July 2013. That is a fixed term. 32In respect of the aggravated break, enter and steal - the Switchboard complex - I sentence you to 18 months imprisonment commencing on 27 February 2012 and expiring on 27 August 2013. That is a fixed term. 33In respect of the armed robbery, taking into account the matters under section 32 of the Crimes (Sentencing Procedure) Act, I fix a non-parole period of 1 year and 9 months commencing on 27 January 2012 and expiring on 26 October 2013. The balance of the term will be 1 year and 9 months commencing on 27 October 2013 and expiring on 26 July 2015. The overall sentence is 3 ½ years from 27 January 2012 to 26 July 2015. The earliest date on which it appears to me that you will be eligible for release on parole is 26 October 2013. Your release will be dependent upon the Parole Authority. Have a seat Mr Reuter. HIS HONOUR: Now Mr Bruce and Ms Wand, any factual or indeed legal matters that could be dealt with as part of this sentence or that I need to re-open under section 43 first. And secondly, the figures. BRUCE: In relation to the first matter, your Honour may wish to correct a slip of the tongue with respect to a reference to Mr Britt when your Honour was dealing with Mr Reuter's subjectives. HIS HONOUR: Yes I did. I referred to that in commencing my remarks on sentence about matters personal to Mr Reuter, I was reading from notes I had taken in respect of Mr Britt's evidence rather than Mr Reuter's. I corrected that partway through and I apologise. Anything else on the legal or factual matters? WAND: No your Honour. HIS HONOUR: What about the figures? WAND: I agree with the figures. 34Mr Reuter, you have got a gaol term as Mr Bruce realistically acknowledged. It is 3 ½ years, it is for the armed robbery and it takes into account the other break and enters and there is two sentences for the Joyce Mayne and the Switchboard. They run at the same time as that because the Judge sentencing Lang did the same so I have done the same there but I have given you a gaol term for the armed robbery because it is so serious and that gaol term is 3 ½ years and your minimum term is 1 year and 9 months which is half that. Normally a standard one would be 2 years and 7 months that you would have to stay in gaol but because of your age and your prospects of rehabilitation, then I have adjusted that to half so you will be eligible to be released in 1 year and 9 months from 27 January which, as I repeat, you will be eligible on 26 October 2013 do you understand that? OFFENDER: Yeah. HIS HONOUR: All right now you have got a very supportive family who are behind you so do your time. You have got a strong work ethic, I have referred to that. You have got a good upbringing and you can turn your life around so good luck. Thank you. ********** 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: 08 October 2012