District Court New South Wales Medium Neutral Citation: R v Lake [2013] NSWDC 315 Hearing dates: 19 December 2013 Decision date: 19 December 2013 Before: Berman SC DCJ Decision: For the offence of break and enter with intent to steal in circumstances of aggravation the offender is sentenced to imprisonment consisting of a non-parole period of 18 months and a head sentence of 3½ years. For the offence of larceny sentenced to imprisonment for a fixed term of 12 months. Catchwords: CRIMINAL LAW - Sentence after call up - Breach of s 9 bond imposed after the imposition and completion of a s11 bond - Break and enter with intent to steal in circumstances of aggravation - Larceny - False evidence regarding rehabilitation - Form 1 taken into account Category: Sentence Parties: The Crown Dean Norman Lake Representation: Counsel: Mr A Robertson - Crown Solicitors: Director of Public Prosecutions Aboriginal Legal Services - Offender File Number(s): 2010/378687 Judgment 1HIS HONOUR: Section 11 remands are important tools in the sentencing process. They enable a judge to obtain more information about an offender and his or her prospects of rehabilitation before determining the most appropriate sentence. They enable an offender to demonstrate rehabilitation rather than just promise it. 2A matter in this category came before me some time ago. Dean Lake had pleaded guilty to two offences and asked me to take into account other offences. In August 2011 evidence that I received suggested that Mr Lake was making substantial efforts at rehabilitating himself. He clearly has a long term problem with alcohol, and whilst drunk, regularly enough commits offences, including offences of some seriousness. But in August 2011 there were concrete indications that Mr Lake was capable of overcoming his problems with alcohol which in turn would mean that he was going to overcome his problems with the criminal law. 3He came back before me in March 2012. The evidence that I received on that occasion I summarised in these terms. "He comes before me today having done all that was required of him." The material suggested that Mr Lake had rehabilitated himself to a significant extent. There was a favourable pre-sentence report tendered, and other evidence suggested the substantial benefit that Mr Lake had achieved through me releasing him on a s 11 bond. 4What I did not know then, but now know, is that on the very morning he appeared before me in March 2012 he had committed two criminal offences, an offence of aggravated stealing in a dwelling and breaking out, and taken into account on that offence was an offence of obtaining financial advantage by deception. Thus, not to put too fine a point on it, I was completely misled when I sentence Mr Lake in March 2012. 5Because of the glowing evidence that I had received concerning his rehabilitation I put him on a s 9 bond. Had I known the truth of course, that is something that would have been completely inappropriate. Since going onto the s 9 bond he has been sentenced for the offences he committed on the day he appeared before me, and been sentenced for a number of other offences committed in February this year. He admits that the offences in February this year are breaches of the s 9 bond, and thus it falls to me to sentence him. 6When Mr Lake is not drinking he is crime free. As Mr Jeffery, who appeared for him today submitted, what Mr Lake's history demonstrates is the power that alcohol has over him. He needs substantial support in overcoming his problems with alcohol. But he also needs to be reminded in a very concrete way about what is going to happen to him should he continue to commit further offences. Personal deterrence is of significant importance in these sentencing proceedings. 7Mr Lake has undergone residential rehabilitation in the past, including in the lead up to the offences in February this year. He has demonstrated that he is capable of being alcohol free for significant periods of time. But he has also demonstrated a tendency to relapse and then commit further offences. 8He gave evidence today, and he recognises how he has suffered through his problems with alcohol. It is the root cause of his present custodial situation and he understands that if he is to avoid spending longer and longer periods in gaol he simply has to never drink again. Of course that is an easy thing to say. But Mr Lake's history demonstrates the difficulty that he will have upon his release from custody. 9The purposes of sentencing are multi-faceted. In this case I will impose a sentence which takes account of the need to rehabilitate Mr Lake, but which also takes account of the need to punish him for the offences he committed now some time ago. As I said earlier, personal deterrence is important in Mr Lake's case. When he is released from custody and he is tempted to drink, he must do so knowing that if he does there is a very good chance that he will commit further offences. And if he does that there is a hundred per cent chance that he will go back to gaol. 10The principle of totality applies of course to the sentence that I am about to impose. I have to take account of the various sentences that Mr Lake has been serving of recent times: Judge Syme's sentence for the offences he committed on the day he appeared before me; the magistrate's sentence for the offences which led to the breach of the s 9 bond; and now these sentences for the offences with which I am dealing. 11Special circumstances clearly apply, not only because of the accumulation which is necessarily required, but also because of the need to closely supervise Mr Lake upon his release from custody. 12Mr Jeffery submitted that I should impose a sentence upon Mr Lake which sees him serving no extra time in custody beyond that which has already the subject of previous sentences. That is clearly not a possible outcome. As it turns out Mr Lake had not rehabilitated himself when I thought he had. Had the truth been known in March 2012 I would have sent Mr Lake to gaol there and then. He cannot go unpunished for those offences and so he must spend a period of further time in custody. It is less than would ordinarily be the case because of the need to ensure that Mr Lake is given as much opportunity as possible upon his release from custody. 13For the offence of break and enter with intent to steal in circumstances of aggravation the offender is sentenced to imprisonment. I set a non-parole period of 18 months to date from 27 February 2014, with a head sentence of three and a half years. 14For the offence of larceny I impose a fixed term of imprisonment of 12 months to date from 27 February 2014. This means that Mr Lake is eligible to be released to parole on 27 August 2015. 15I should indicate that in imposing sentence for the first matter I have taken into account the matters on the Form 1. ********** 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: 16 April 2014