District Court New South Wales Medium Neutral Citation: R v Pead, R v Pead [2014] NSWDC 103 Hearing dates: 17 April 2014 Decision date: 17 April 2014 Before: Berman SC DCJ Decision: Thomas Pead is referred for assessment as to his suitability to serve that sentence of imprisonment by means of an intensive corrections order. The matter of Scott Pead is adjourned under s 11 of the Crimes (Sentencing Procedure) Act Catchwords: CRIMINAL LAW - Sentence - Aggravated break, enter and commit serious indictable offence - In company - Intentionally damage property - Stealing Legislation Cited: Crimes (Sentencing Procedure) Act Category: Sentence Parties: The Crown Thomas Pead Scott Pead Representation: Director of Public Prosecutions Benjamin & Leonardo Criminal Defence Lawyers - Thomas Pead Legal Aid Commission - Scott Pead File Number(s): 2013/228920 2013/228926 Judgment 1HIS HONOUR: Thomas Pead, who is six years older than his brother Scott Pead, decided that he should speak to his brother about personal issues that were effecting them. In order to give himself the courage to do that, he began drinking about 10 o'clock in the morning. He and his younger brother then went to a hotel where they continued drinking. 2They left the pub in the mid-afternoon and were walking home. They walked past a carwash business which was closed for the day. It had been operating the day before but not the day the brothers walked past. It was Scott's idea to enter the premises to, as he suggested, look around. His brother, Thomas, then forced open a roller door and went inside. It was Scott's intention that they would steal. This was not his brother's intention. When his brother went inside he decided to damage property. He had already damaged the property by forcing open the roller door but once inside, for reasons best known to himself, he thought it would be a good idea to break some crockery. 3Police attended. Consistent with what Scott later told police, when a police officer arrived he saw Scott walking out from the building. Once Scott saw police he went back inside to tell his brother the police were there. Both of them then came out again. The officer had his pistol drawn. He directed both men to lie on the ground. Scott immediately did so but Thomas did not. The officer forced him to the ground and told them that they were under arrest. Thomas was so intoxicated that he could not be interviewed. 4Although Scott had been drinking he was not as drunk as his brother and told police "Tom opened the door and went in. I just followed him". He then said a number of things which indicated that once inside his brother played the role of the leader in the enterprise rather than the follower. It was Thomas who opened things up. It was Thomas who entered first and it was Thomas who smashed - the facts refer to cutlery but that probably should be a reference to crockery. 5The brothers now face different charges consistent with their different actions and their different intentions. Thomas is to be sentenced for an offence of aggravated break and enter and commit serious indictable offence, the circumstance of aggravation being that he was in company, and the serious indictable offence being intentionally damaging property. That offence carries a maximum penalty of 20 years imprisonment with a standard non-parole period of five years. I have taken both the maximum penalty and the standard non-parole period into account in determining the appropriate sentence to impose in Thomas' case. My reasons for not imposing the standard nonparole period appear in these remarks on sentence. 6Scott, on the other hand, is to be sentenced for an offence of aggravated break and enter with intent to commit serious indictable offence, namely stealing. Again the circumstances of aggravation is that Scott was in company with his brother. The maximum penalty for that offence is imprisonment for 14 years. It does not have a standard non-parole period. 7Scott was 18 at the time of the offence and is now only 19. His brother is now 25. Their father left the home when they were younger and they have been brought up by their mother since then. Their father has moved overseas and contact with him has been less than ideal. 8One thing they clearly have in common is a problem with alcohol. They were both significantly intoxicated at the time of this offending which, for reasons that no-one has been adequately able to explain, is no longer a mitigating circumstance that I can take into account. As the Crown Prosecutor put it, it was intoxication which directly led to these offences being committed. Were the brothers sober they would not have done what they did. It seems remarkable that I must now treat the conduct of these brothers in the same way as a deliberate, cold, calculated offence by someone entirely sober. Were it not for the recent amendments I would have found immediately that the moral culpability of these two men was reduced because of their intoxication but I am to apply the law and the law is that self induced intoxication is no longer a mitigating circumstance. In other words the sentence cannot be reduced because of the very important circumstances in which it was committed. 9That is not to say the fact that the brothers were intoxicated is irrelevant. Clearly, in assessing their prospects for rehabilitation I have to take into account the prospects of them continuing to drink to excess as they have done. If they continue to do so, then it is much more likely that they will commit further offences. If they do not, it is much more likely that these offences will be isolated. 10Although he was the less intoxicated of the two on the day the offence was committed, Scott's problems with alcohol appear to be greater than those of his brother. Indeed, after the commission of this offence he was admitted to a private hospital in Kogarah for treatment related to his binge drinking. He has had earlier admissions to hospital relating to a problem that is of fairly long standing. He suffers from anxiety, has been prescribed medication for it and has, as I have just said, been admitted to hospital presenting with anxiety. 11Scott completed high school and has worked fairly regularly since then as well as completing TAFE courses in catering. He has plans and hopes for the future, wanting to be involved with food as a career. 12Thomas, being older, has already achieved a work history of which he is entitled to be proud. He works as an administrator and references from people that know him and of his work were tendered today. He has two entries on his criminal history, both for possession of drugs but the references suggest that this offence was very much out of character. 13Of course the principle of parity applies but the offenders must realise that there are significant differences between them. They face offences with different maximum penalties. One offence has a non-parole period, the other does not. It was Scott's idea to go into the carwash in the first place but once that decision was made it was Thomas who opened the door and who performed the more active role inside. Thomas actually committed the offence of malicious damage whereas Scott only intended to steal. Scott pleaded guilty at the first opportunity whereas Thomas pleaded guilty only after arraignment in this Court. Scott ceased his involvement before his brother, who only stopped after police arrived. So those differences have to be borne in mind when the sentences I am about to impose on the brothers are compared. 14Mr Hutchinson, who appears for Scott Pead, suggests that his client should be placed on a bond under s 11 of the Crimes (Sentencing Procedure) Act pointing to his tender age being, as I said before, only 19 now and relying on the long term problems that Scott has had, particularly with anxiety. 15Scott is not presently working but hopes to get work and part of the benefit of a s 11 remand would be, said Mr Hutchinson, that I could assess him after the end of the remand to see whether he has continued on the path to rehabilitation he has himself commenced after moving back home recently and moderating his drinking. 16One problem, as was acknowledged by Mr Hutchinson and Mr Crown, with offences committed under the influence of alcohol is that it is difficult to monitor drinking during the course of any bond. What I would like to see in the period of remand I propose to impose on Scott Pead is evidence that he has done what has been suggested that he will do, moderate his drinking, get work and demonstrate, rather than just promise, rehabilitation. So I propose to adjourn the sentencing of Scott Pead for a period of approximately nine months. I will discuss with Mr Hutchinson an appropriate date at the conclusion of these remarks. 17The situation with Thomas is different. He is not of tender years. He has already got a good job and so a s 11 remand is not appropriate for him. It is important that he be punished for what he did. Although the damage to the crockery and the roller door may appear to be relatively minor, it is nevertheless a serious thing to do, to break into premises and damage things inside. The offence, carrying with it a standard non-parole period, is one that would ordinarily result in a sentence of full-time custody. That is not to say, of course, that full-time custody must be imposed in every case but the offence itself is such that ordinarily that is a type of sentence that could be expected. The offender's plea of guilty was not at the earliest opportunity but it came before a trial date had been set. The sentence I impose will be 15% less than it would otherwise have been. 18Mr Premutico's submission was that I would deal with this matter by way of a s 9 bond. In my view that would be insufficient to reflect the objective gravity of what the offender did. Mr Premutico's fallback submission was that if a sentence of imprisonment was imposed it would be by way of an alternative to full-time custody. In my view the fallback position should be accepted, having determined the length of the sentence I will shortly announce is such that alternatives to full-time custody are available. 19The sentence I impose on Thomas Pead is likely to be imprisonment for two years or less. Indeed I had in mind a sentence of 18 months imprisonment. I will adjourn the matter so that he can be assessed as to his suitability to serve that sentence of imprisonment by means of an intensive corrections order. 20I will list the matter of Scott Pead for 18 December at 10am. 21The conditions of bail are as follows. (1)He is to live with his mother at (an address known to the Court) or such other place approved by the Probation and Parole Service. (2)He is to be supervised by the Probation and Parole Service. (3)He is to be of good behaviour. (4)He is to participate in the Salvation Army's Positive Lifestyles Program to a satisfactory standard. (5)He is to attend counselling with Neil Ballardie as often as that psychologist recommends or with some other psychologist nominated by the Salvation Army. (6)He is to actively seek employment. (7)He is to use no illegal drugs whatsoever including, and it should not be necessary for me to say this but I will, the drug cannabis. 22I will grant bail to Thomas Pead until 6 June 2014 at 2.00 pm and request that his suitability to serve a sentence by way of an Intensive Corrections Order be assessed and an appropriate report be provided. ********** 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: 21 July 2014