District Court New South Wales Medium Neutral Citation: R v Steele; R v Mahoney [2013] NSWDC 288 Decision date: 31 May 2013 Before: Cogswell SC DCJ Decision: Mahoney - For the offence of break, enter and steal sentenced to non-parole period of 14 months. Balance of the term 14 months. Order directing release on parole today (31/5/13). Steele - For the offence of accessory after the fact to break, enter and steal sentenced to perform 150 hours of community service. Catchwords: CRIMINAL LAW - Particular offence - break, enter and steal - accessory after the fact to break, enter and steal - Sentence - relevant factors - gravity of offence - lower half of the range of seriousness for burglaries - most property recovered - prior criminality - response to charge - pleas of guilty - nature and circumstances of offenders - long histories of substance abuse - Steele has physical and mental health issues - Mahoney on conditional liberty when offence committed - custodial sentence appropriate - community service order therapeutic for offender Steele. Legislation Cited: Crimes Act 1900 (NSW), ss 112(1). Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 50, 86. Category: Sentence Parties: Regina (Crown) William Steele (Offender) Mitchell Mahoney (Offender) Representation: Counsel: D Marr (Offender - Steele) D Price (Offender - Mahoney) Solicitors: D Laird, Office of Director of Public Prosecutions (Crown) File Number(s): DC 2012/00050262 (Steele) DC 2012/00066474 (Mahoney) SENTENCE 1I am sentencing Mitchell Mahoney and William Steele for their parts in a housebreaking and theft which occurred on 14 February 2012. I will first set out very briefly what happened then I will say something about each of the offenders. I will then look at the arguments for the prosecution and the defence and finally I will sentence each of them. 2What happened is set out in a document which has been agreed between the prosecution and the defence. A home was broken into in Kingsford during the day on 14 February 2012. It was broken into by Mr Mahoney. He stole from the home an X-Box console and games, jewellery, watches, cologne, foreign and local currency. He was then seen shortly afterwards in a car. He was seen to get out of a car and hide something. The number plate of the car was identified as belonging to his co offender, William Steele. Mr Mahoney got away as did Mr Steele, who was apparently driving the car. 3The police investigation showed that Mr Mahoney's details matched the break in and both he and Mr Steele were arrested. Everything was recovered except for $1000 in Australian currency and an iPod. 4As a result of that activity Mr Mahoney was charged with the offence of break, enter and steal. That is a crime against s 112(1) of the Crimes Act 1900 (NSW). Parliament regards the crime as very serious and has fixed a maximum of 14 years imprisonment to the offence. I should add that Mr Mahoney was arrested about two weeks later. 5Mr Steele, on the other hand, although charged and committed for a similar offence, eventually pleaded guilty to the crime of accessory after the fact to break, enter and steal. That carries a maximum of 5 years imprisonment. He had spent about 2 days in custody before being bailed. 6I formally convict each man of those offences that they have pleaded guilty to. I should have added that Mr Mahoney also pleaded guilty to the crime that he was charged with. 7I should now say something about the background of each man. Mr Mahoney is still only 23 years of age, whereas Mr Steele is 51. Both men have criminal records. Mr Mahoney's criminal record started when he was a teenager and the Children's Court dealt with him regularly for assaults and burglary and trespassing offences. His first offence as an adult was committed when he was only about 18½ and he was sent to gaol for 9 months for yet another burglary and possession of house breaking implements. In fact he committed two of those offences. He came before the Local Courts again but was dealt with more leniently for a receiving property. He was given a bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and then for another receiving property and another attempted burglary and goods in custody he received a series of intensive correction orders from the Local Court. One of the intensive correction orders was imposed after the bond (under s 9) had been revoked. 8Mr Mahoney's criminal activity is explained but not excused by what is described in a pre-sentence report as "a long history of substance abuse from the age of 15 years, particularly in relation to heroin use". Apparently at its peak he was using about three grams a day which cost about $1000 every day. At present he is on the methadone program and is bail refused in custody. 9Mr D Price, the counsel who appeared for Mr Mahoney, called his client to give evidence. Whilst he was in custody bail refused there was an incident. He was in a fight with another inmate and as a result he was bitten on the face which has left him with a noticeable scar. He expressed remorse for the crime which he had committed. He acknowledged that he had opportunities to use heroin in custody but has declined and is maintaining his place on the methadone program. His relationships with his parents are strained. In his father's case he has only met him a few times. But he has a good relationship with an aunt and she provides him with support and encouragement. He also has a partner, [name], with whom he shares two children, a 15 month old boy and a 6 year old girl. She is still supporting him personally but has indicated that she is not prepared to tolerate his criminal behaviour any longer. 10This is probably his last chance. He broke his leg at one stage and was bedridden for five months. He says that he is committed to remaining drug free when he is released from gaol. He says that he was encouraged by speaking with the officer who assessed him for the intensive correction order and his experience in prison has led him to form the view that he does not want to be in there as a 50 year old. He wants to get on with his life, support his wife and children with a job and put his drug addiction, which he acknowledges he will have for the rest of his life, behind him as a practising addict. 11The pre-sentence report noted his ongoing issues with prohibited drugs and observed that Mr Mahoney would benefit from participation in further interventions regarding this and thought that he would be suitable for a medium level of intervention and support through that service. An updated report noted that he took responsibility for the offence which he did when he gave evidence and noted that he "appears to be motivated to address his addiction". 12What Mr D Laird - who appears for the Director of Public Prosecutions - observed, of course, is that he committed this offence when he was on the good behaviour bond and on bail. I need to take those factors into account in sentencing him. 13Mr Price tendered a letter from his client's partner, [name], who expressed her support for Mr Mahoney and thought that his participation in an intensive correction order "would play a major role in his rehabilitation". She said the he has support from his family and from her. 14Mr Steele also has a long history of criminal offending. His record is much longer than Mr Mahoney's because Mr Steele is now 51. He has been addicted to prohibited drugs since his teenage years. He started off with offences dealt with by the Children's Court and then was sentenced by adult courts both in this State and in Queensland for drug related offending and offences involving fraud and assault and stolen property. He has received a range of sentencing options including full time gaol, good behaviour bonds, home detention and suspended sentences. 15There is a pre-sentence report in respect of Mr Steele which notes that his association with the Probation and Parole Service dates back to 1979. It noted that he lives with his partner of nearly 30 years who still supports him. It noted his very long history of drug dependence, with his drug of choice being heroin. The author thought that he would be suitable for a medium to high level of supervision, although the report expressed the view that he was unsuitable for community service. A later report from the same Probation and Parole officer, Simon West, noted an up to date doctor's report and as a result of that he was assessed as now suitable for undertaking community service work. 16Mr Marr, who appeared for Mr Steele, tendered a report from the forensic psychologist, Tim Watson Munro. Mr Watson Munro diagnosed a major depression and, not surprisingly, a poly substance abuse disorder. He also noted that Mr Steele is suffering from an anxiety disorder. He thought that Mr Steele had not had any consistent therapy over the years and expressed the view that Mr Steele would benefit from cognitive behaviour therapy focused on various aspects of his behaviour. He noted that he had started using heroin at the age of 12. He used some other substances which is what prompted the diagnosis of poly substance disorder. Mr Watson Munro agreed with a report from a GP which expressed the opinion that Mr Steele's "mental state and mental capacity will definitely be clouded by his problems". His ability to function normally in the community will be compromised. 17Mr Marr also tendered material which indicated that Mr Steele had had a back and shoulder injury as a result of an accident and noted an epilepsy problem as well. He also tendered some correspondence which indicated that Mr Steele had offered to plead guilty to the offence which he has now been convicted of at a much earlier stage but that offer was rejected by the Office of the Director of Public Prosecutions. 18So far as Mr Mahoney is concerned, his plea of guilty was late and Mr Laird suggested that a discount in the range of 5 to 10% would be generous. Mr Laird realistically observed that, given the length of Mr Mahoney's drug history, he needs supervision on parole. Mr Laird fairly acknowledged that the nature of the offence would be in the lower half of the range of seriousness for burglaries. I agree with that assessment. Most of the property was recovered. Mr Laird indicated that Mr Mahoney obviously needs a good deal of time on parole. 19There is a complication brought about by the fact that when Mr Mahoney received a series of intensive correction orders it is not known whether the Magistrate took into account, at the time that she imposed those orders, the fact that he had spent a good deal of time in custody, bail refused, in respect of this offence. Mr Price indicated that her Honour noted the history but did not expressly say that she had taken it into account. Both lawyers acknowledge that Mr Mahoney has spent enough time in custody and should be released but spend some time on parole. 20Mr Price argued that there were special circumstances for adjusting the normal relationship between a non-parole period and the full sentence. Normally a non-parole period is three quarters of the full sentence. Mr Price pointed to his client's age and his young family as well as the need for him to deal with his addiction and the injury he received in custody. Mr Price also realistically acknowledged that the plea of guilty was entered at a time that should not attract more than 10% discount. 21I think this is a case where I need to impose a custodial sentence. The maximum fixed by Parliament for this crime is 14 years imprisonment. The sentence I have in mind is one of 2½ years imprisonment. I would discount that by 5% for his plea of guilty but round that discount up to 2 months, so that I would regard an appropriate sentence as being one of 28 months imprisonment. A sentence of 28 months imprisonment would normally have a non parole period of 21 months but in this case I would reduce it to 14 months or whatever the period of time is that Mr Mahoney has spent in custody. 22So far as Mr Steele is concerned, Mr Laird fairly and frankly acknowledged that this was not a case which should attract a sentence of full time custody. Mr Steele's role was no more than to pick up Mr Mahoney and to drive him away. Mr Laird argued that a community service order was not appropriate because of Mr Steele's physical health issues and the need for him to be limited to light work. A community service order could be further frustrated. On the other hand Mr Marr argued that Mr West, the Probation and Parole officer who revised his assessment about the community service order, knows Mr Steele well and in fact had made inquiries and had found a place suitable for light work. Mr Marr argued that a community service order would keep his client occupied and would be therapeutic for him. 23I think Mr Marr has a point and I propose in due course to fix a community service order. I take into account the fact that he was prepared to plead guilty at the earliest available opportunity. I would regard an appropriate sentence as one being of 150 hours community service. HIS HONOUR: Now Mr Laird, Mr Price, do we know how long Mr Mahoney has been in custody? Because that's the non-parole period, we need the days. LAIRD: My instructing solicitor has dealt with it as 447 days your Honour. My friend says 5 April 2012 backdated another 34 days. He was taken back into custody on 15 April. HIS HONOUR: You two work it out. In the meantime I will sentence Mr Steele. 24In respect of Mr Steele, if you would stand up Mr Steele, instead of imposing a sentence of imprisonment I make a community service order directing you to perform community service for 150 hours. HIS HONOUR: Mr Marr I will just look at Pt 7. MARR: I think he has to report to the city district office within 7 days. 25I should add that I am satisfied with the matters set out in s 86 of the Crimes (Sentencing Procedure) Act. HIS HONOUR: Any conditions Mr Marr? I notice that s 90 provides that I can impose conditions for a community service order. I don't know whether you and Mr Laird would recommend conditions or not: "the conditions may require an offender to participate in development programs and may require the offender to undergo testing or assessment for alcohol or drug use" LAIRD: I am not asking for anything like that your Honour. MARR: No your Honour. HIS HONOUR: I think that's the CSO - Mr Steele has been around for long enough to know that he's just got to go and cut out the hours and I think to require some testing is going to set him up for another breach. LAIRD: I think just leave it in the hands of the Probation and Parole Service who have to deal with him. They'll set out the terms of the order that they want from him. HIS HONOUR: That makes sense Mr Marr. MARR: Yes your Honour. HIS HONOUR: All I do is make a community service order. And you say I've got to tell him to report somewhere. LAIRD: Yes your Honour, on the updated pre-sentence report he should report to the Community Service or the organiser at the city district office within 7 days. 26I direct Mr Steele to report to the Community Service organiser at the city district office of the Probation and Parole Service on or before next Friday 7 June 2013. HIS HONOUR: Mr Steele, so you have got 150 hours of community service, you understand that? OFFENDER STEELE: Yes your Honour. HIS HONOUR: You know Simon West, by the sounds of it. OFFENDER STEELE: I do know the location where the Wentworth offices are. HIS HONOUR: You do, good. And Mr West has dealt with you before. OFFENDER STEELE: Yes. HIS HONOUR: Now, it is up to you. You have been in enough Courts to know what to do and how to do it and to manage your life as best as you can. The idea is to stay out of gaol. You know that if you breach you are at risk of going back into gaol which you do not want to do and you have just got to do your best to complete those hours. Let Mr West help you. Good luck. OFFENDER STEELE: Thank you your Honour. HIS HONOUR: Now Mr Price, what's happening? PRICE: Our calculation, if your Honour wants days is 447 days. HIS HONOUR: 447 days? PRICE: That equates to just under 15 months. So if your Honour just backdates it 14 months from today your Honour will be well within that range. If your Honour wants the exact days that he has been in custody as of today, our calculation is 447 days, which is more than 14 months but just under 15 months. HIS HONOUR: So if I back date it 14 months and give him a 28 month sentence, that means some of the time has not been taken into account. PRICE: But only a matter of 20 days. And so it gives a good leeway if there's any error in my instructing solicitor's mathematics. HIS HONOUR: If you are saying that that's okay? PRICE: Yes. HIS HONOUR: Because I normally should take into account time served. PRICE: That could possibly have been what was in Magistrate Huber's mind, I don't know. I don't think it really makes any difference, bearing in mind there was a bit of give and take in relation to that. But it allows any margin for error. LAIRD: I don't have a problem with that your Honour. 27I am going to sentence you now Mr Mahoney. I set a non-parole period of 14 months for your sentence commencing 31 March 2012 and expiring yesterday 30 May 2013. The balance of the term will be 14 months commencing today, 31 May 2013, expiring on 30 July 2014. Under s 50 of the Crimes (Sentencing Procedure) Act I make an order directing your release on parole today. Conditions of parole I have to fix because of the sentence being less than 3 years. Conditions of parole are these: (1)That the offender be of good behaviour. (2)That he notify the Registrar of this Court of any change in his residential address. (3)That he attend Court if he receives a notice to do so. (4)That he accept supervision from the Probation and Parole Service and all reasonable recommendations and directions by that Service, particularly regarding unresolved illicit drug issues and vocational skills. HIS HONOUR: Mr Mahoney, as you know, as well as I do, it is over to you now. I have, as Mr Price suggested and as Mr Laird fairly acknowledged, you have done your time in custody, it is 14 months up to today. You are under sentence for another 14 months until the 30 July next year. You are still under sentence and you are on parole and I have fixed your parole at 14 months. There are obvious conditions, you have got to stay out of trouble. If you change your address you have got to write to the Court and tell them and if you get a notice in the mail telling you to turn up, you turn up, you do not have the police and the sheriff chasing after you. But the most important one is that you allow Probation and Parole to supervise you and the two areas are your illicit drug use, which has obviously been a problem for a long time in your short life, and getting yourself a job. That is going to be important. Have you ever had a job? OFFENDER MAHONEY: No. HIS HONOUR: No. Look you have got to let them help you with that. You are still a young man. Let them train you, they know what they are doing, or let them organise or give you advice about training. It's in your hands. Your partner has been very supportive. You have got your aunt. They are behind you. But if you mess up again and come back before me I have very little option but to just send you back into gaol, revoke your parole, or the Parole Authority will and you will be back into gaol. This is your chance. If you do not want to be sitting around in the yard when you are aged 50 then just stick to letting other people help you, particularly those that know what they are doing and they will help you. All right. OFFENDER MAHONEY: Thank you your Honour. HIS HONOUR: Good luck. LAIRD: I'm sorry your Honour. In relation to the Probation and Parole Service you have got to specify that he has to turn up within a specified time. HIS HONOUR: Yes. Which one Mr Price? PRICE: In the city, Wentworth Avenue, your Honour. 28Mr Mahoney is to attend the Probation and Parole Service at Wentworth Avenue, before next Friday 7 June 2013. LAIRD: Then whatever the ICO orders will then be brought into effect and he'll be bound by those. HIS HONOUR: Yes. I forgot the ICO, that is hopefully going to come into force and that is going to be restrictive and that's the idea, for what you have done, but at the same time they are going to help you get your life back on track. So you have got to put up with the inconvenience because that is the price you are paying. But you have got to let them help you. It is up to you. I cannot do anything more than what I have done and if you want to enjoy your life with your partner and your children from now on, there is plenty of time to turn it around and now is the time. ********** 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: 25 February 2014