District Court New South Wales Medium Neutral Citation: R v Glare [2014] NSWDC 298 Decision date: 23 October 2014 Jurisdiction: Criminal Before: Cogswell SC DCJ Decision: An aggregate sentence of 3 years imprisonment is imposed with a non-parole period of 18 months. Catchwords: CRIMINAL LAW - particular offences - aggravated break, enter and steal - aggravated break and enter with intent to commit a serious indictable offence - possess housebreaking implements - receive stolen property - larceny - enter building with intent to commit serious indictable offence - deal with proceeds of crime - offending related to drug addiction - fall from stable family life to drug addiction - sentence - nature and circumstances of offender - strong and supportive family - good character -demonstrated remorse - commitment to rehabilitation - relevant factors - no prior relevant criminality - some offences committed while on conditional liberty - risk of re-offending - pre-sentence report opined low to medium risk of re-offending - gravity of offence - lower end of range of objective seriousness - sheer number of offences - totality - plea of guilty at earliest opportunity - 25% discount - special circumstances for adjusting ratio between head sentence and non-parole period - first time in custody - need for residential rehabilitation - need for supervision in the community - Form 1 for 16 offences taken into account on sentence Legislation Cited: Crimes Act 1900 (NSW), ss 112(2), 113(2) Criminal Procedure Act 1986 (NSW), s 166 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 23, 50, 53A Category: Sentence Parties: Regina (Crown) Christopher James Glare (offender) Representation: Solicitors: Office of the Director of Public Prosecutions (Crown) Barron Law (offender) File Number(s): 2013/00315258; 2014/00094546; 2014/00098594; 2014/00123762 Judgment 1. A young man was settling into family life here near Albury with his wife and daughter. They were planning on having another child. He had a good job. He described it as the best job he had ever had. A year later he was emaciated and had been charged with no fewer than seven very serious crimes under the Crimes Act 1900 (NSW). 2. The precipitous fall in this young man's lifestyle commenced casually. He casually shared drinks and stories with friends but they introduced him to the drug commonly known as ice. As the young man said, it grabbed him immediately and he was then chasing it until he was finally detained in custody. 3. The young man's name is Christopher James Glare. He is 30. He is married with now two daughters, aged three and a half and 11 months. He comes from a strong, supportive family but I have to sentence him for seven serious crimes that he has pleaded guilty to. 4. It is important to list the crimes and to say briefly what happened for each of them. I should add that all of the crimes were related to breaking and entering and trying to secure money in order to support the drug habit which had a vice like grip on him. 5. On 12 October 2013 Mr Glare and an accomplice took themselves to the Corowa Golf Club. Mr Glare kept watch whilst the accomplice broke in. The accomplice raided some poker machines, causing about $60,000 in damage. He got about two and a half thousand dollars in cash. Mr Glare was so reckless by that stage in his drug habit, that he and his accomplice left behind an iron bar which had been used to break in, and the iron bar retained Mr Glare's DNA profile. I repeat that Mr Glare was the lookout although he is charged with the same offence as the man who broke in. That is an aggravated break, enter and steal which is an offence against s 112(2) of the Crimes Act. Parliament regards that offence as so serious that it has fixed a maximum of 20 years imprisonment to it. It has also fixed a standard non-parole period of five years. 6. Next in time were two break-ins, both at the Tocumwal Golf Club. They were committed on 18 and 19 October last year. Again he was with an accomplice. They climbed onto a roof but the accomplice fell through and they left the scene. Their expertise in these crimes was such that they returned to the same scene the following morning. Police were waiting. They broke in again and the police arrested them. At that stage Mr Glare admitted his offences. He was put on bail. 7. Because those two offences did not involve any actual theft, he was charged with aggravated break and enter with intent to commit a crime. That and the first offence I spoke about were aggravated because Mr Glare was in company. 8. Returning to the break and enter with intent, Parliament has fixed a maximum of 14 years imprisonment to that offence but no standard non-parole period. One of his accomplices - there were apparently two - received a prison sentence of 18 months with a non-parole period of six months. 9. About six months later, Mr Glare was at it again. On 6 March 2014, he and another accomplice turned up at the Oaklands RSL Bowling Club. They used a jemmy bar to prise open the door and get into the kitchen. They found nothing of value so they decided to leave. That resulted in another charge of aggravated break and enter with intent, under s 113(2) of the Crimes Act. Again they decided to return to the same scene a day later on 7 March 2014. They broke in and walked around again. This time all that they were able to find was a tub of ice cream, to which Mr Glare helped himself. That gave rise to a charge of aggravated break and enter and commit serious indictable offence against s 112(2) of the Crimes Act. That is one of the crimes to which, as I mentioned, Parliament has fixed a maximum of 20 years imprisonment and five years standard non-parole period. 10. Mr Glare has asked me to take into account, when sentencing him for that crime, four other offences all committed in March 2014. They are offences of possessing housebreaking implements, receiving stolen property, larceny and entering a building with intent to commit an indictable offence. I will take those additional offences into account when I am sentencing him for that crime and I sign a certificate to that effect. 11. Over the evening of 9 -10 March 2014, Mr Glare and an accomplice broke into the Redlands Cafe in Redlands Road, Corowa. They cut security bars off the window and forced the window open. The owners found that over $800 of goods had been stolen, mostly snack food and confectionary. This too resulted in a charge of aggravated break and enter and commit a serious indictable offence against s 112(2) of the Crimes Act. 12. The final and seventh offence is a further aggravated break, enter and commit serious indictable offence against s 112. That is a crime that Mr Glare admitted to committing when he was being interviewed about other crimes. He said that he had broken into the Rennie Football Club with someone else and they stole some equipment and some beer as well as even a heart defibrillator. That resulted in another charge against s 112(2) of the Crimes Act. 13. Again Mr Glare asks me to take into account, when I am sentencing him for that offence, a long list of 12 offences which are mostly receiving stolen property and dealing with proceeds of crime. Those charges arose when police visited his home and found a good deal of property. I will take into account those offences when I am sentencing him for the aggravated break, enter and steal into the Rennie Football Club and I have signed a certificate to that effect. 14. Mr Glare has a negligible criminal record with only a handful of traffic offences and I regard those as having no impact on the sentence. In fact I sentence him as a person who does not have a criminal record for offences anywhere near as serious as the ones he has now committed. 15. I repeat, Mr Glare comes from a strong family background and has on-going support. I heard evidence from his wife, Belinda Glare and his mother, Karen Anne Collins, both of whom were very impressive and made it clear that their husband and son had their full support. Mr Glare has very good employment qualifications. He spent a couple of years in the navy and qualified as a mechanic after an honourable discharge and has secured a number of jobs and has been promoted in those jobs. 16. Mr D Barron, who appears for Mr Glare, called his client to give evidence. Mr Glare made it very obvious that he is very remorseful for the crimes which he committed. It was also apparent that he had commenced some form of rehabilitation before he was finally arrested on 1 April 2014, the day that his home was searched and the stolen goods were found. There is a note amongst the papers to the effect that he had spent two days in custody, so the sentence I propose to date from 30 March 2014. 17. Mr Glare pleaded guilty at what Mr A Thomas, who appears for the Director of Public Prosecutions, agreed was the earliest opportunity. Because that facilitates the course of justice and enables other people's cases to be heard sooner and uses up less in resources, it attracts a discount of 25% on a sentence which would otherwise be imposed. In addition to this, there is a further discount acknowledged in this case relevant to s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Mr Barron proposes and again, Mr Thomas agrees, that the overall joint discount should be 40% off the sentence. 18. There is a pre-sentence report which confirms much of the material which I have referred to. It confirmed, for example, that, "his entire history of illicit substance abuse encompassed a period of just under 12 months." He acknowledged with incredulity "the hold methamphetamines had gained over him in such a short period of time and the significant impact of same resulting in the current situation." He is regarded as a low to medium risk of re-offending. 19. Interestingly, he himself acknowledged that when he commenced the habit he found himself in the company of people who, as he said, were thieves, bludgers and criminals. With a good deal of insight, he said in evidence that he "became one of those" because he became like his friends. 20. As I have said, Mr Glare had commenced rehabilitation, with the support of his wife, some time before his final arrest and in fact had a clean drug analysis certificate dated 25 March 2014. 21. He is highly regarded as an employee and as a member of the community by people who have provided references for him. He wants to take the opportunity to continue some rehabilitation whilst he is in custody, again realistically and insightfully acknowledging that he needs the tools to deal with this strong addiction. He wants to get back to his family life and employment and would be prepared to undertake a residential rehabilitation program, including counselling, when he finishes in prison. Again with a good deal of insight, he said that he could acknowledge "never again" but he needs the tools and the skills to rehabilitate himself. 22. Mrs Glare, his wife, described the impact of ice on her husband as watching him disappear. She could not even trust her children with him. He now looks much healthier when she and her daughters visit him in gaol because he has remained off drugs whilst in custody. His mother also noticed his downhill spiral and whilst not wanting to interfere, realised that she had to step in when she was at her wits end. She described how her son probably found it very hard to say no to the seedy characters he was mixing with who also were quite frightening. She confirmed her son's obvious remorse. 23. In his submissions, Mr Barron floated the idea of a release on parole at this stage or even by Christmas. I am not going to do that because it would be releasing Mr Glare before he has served enough time in prison to account for the extent of his criminal behaviour within the community. But in his favour, I take into account his remorse and his lack of a relevant criminal record, his good character and the commencement of his rehabilitation, including being drug free in prison. 24. Against him is the fact that a number of these offences, those committed after 19 October 2013, were committed whilst he had been afforded liberty within the community by being on bail. Mr Thomas agreed with Mr Barron's submission that individually each offence was towards the lower end of the scale in seriousness. That must be so because the offences are mostly break, enter and steal which is an example of breaking and entering and committing a serious indictable offence. There are far more serious indictable offences than stealing that one could commit after breaking and entering. That is not to condone the offending but to put it in its context. 25. Mr Barron submitted and Mr Thomas accepted that there were special circumstances for adjusting a non-parole period. Normally the non-parole period for a sentence is 75% of the head sentence. I accept that submission. Mr Glare needs additional time to undertake residential rehabilitation and to get himself out of the acknowledged grip of this most dangerous drug. 26. Although Mr Barron suggested that his client was a low risk of re-offending, I prefer the pre-sentence report's assessment of low to medium. One has to be realistic about the impact that this drug can have on people's behaviour. 27. Mr Thomas, whilst acknowledging the lower seriousness of individual crimes, made the point, appropriately in my opinion, that I had to take into account the impact of the sheer number of offences which had been committed by Mr Glare. I have to bear in mind the question of totality. It is not a matter of simply adding up individual sentences but of assessing sentences which are appropriate for the crimes. 28. I do not propose to make any order for compensation. I think Mr Barron and Mr Thomas are right; that can be pursued in a civil court because the most serious damage which was inflicted in breaking into the Corowa Golf Club was in fact the result of his accomplice's efforts rather than Mr Glare's. 29. At my invitation, Mr Barron made some submissions to me about which sentences should be concurrent, that is run together, and which ones might stand alone. I broadly accept those submissions and I will refer to them in a moment. 30. What I propose to do is to fix one sentence as an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act. But I also need to indicate what I would regard as the appropriate individual sentences. I have also borne in mind the statistics provided for me from the Judicial Commission's statistics database. 31. In respect of the first offence committed in the Corowa Golf Club on 12 October 2013 and given that Mr Glare was a lookout and his strong subjective case, I would regard an appropriate sentence as being one of three years imprisonment. 32. The two offences committed at the Tocumwal Golf Club, for those two offences I would regard penalties of one and a half years imprisonment for each of them to be appropriate. I would direct that those two sentences be served at the same time but accumulated by six months on the first, so that there would be total so far of three and a half years. 33. The fourth offence of break and entering with intent at the Oaklands RSL Bowling Club, I would regard as being punishable with two years imprisonment which should be concurrent with the fifth offence committed at the same place. However, the fifth offence is the aggravated break, enter and steal. The stealing was only ice cream, but I am required to take into account the offences he has asked me to take into account regarding those. I would regard an appropriate sentence for the fifth offence as being three years imprisonment, to be concurrent with the two years for the offence at the same place, but they should be accumulated by another six months on the previous sentences. So the total so far is four years imprisonment. 34. For the aggravated break, enter and commit serious indictable offence at Redlands Cafe on 9 -10 March this year, an appropriate sentence, in my opinion, is three years imprisonment. That too should be accumulated by six months. So the total is four and a half years imprisonment. 35. The final offence of breaking, entering and stealing at the Rennie Football Club, for that I need to take into account the numerous matters which he has asked me to take into account. Bearing that in mind, I would regard an appropriate sentence as being one of a four and a half years imprisonment. Again, I would accumulate that by six months. 36. I can indicate, therefore, that the total sentence which would be appropriate would have been five years imprisonment but I need to apply the discount of 40%, which I have already referred to, so that the overall final sentence would be one of three years imprisonment. 37. Normally a sentence of three years imprisonment would be accompanied by a non-parole period of two years and three months, being 75%. In this case I propose to reduce that significantly to 50% so that the non-parole period will be 18 months imprisonment. 38. The formal orders are these. Under s 53A of the Crimes (Sentencing Procedure) Act 1999, I impose an aggregate sentence of imprisonment with respect to all of the offences. That aggregate sentence is three years imprisonment commencing 30 March 2014 and expiring on 29 March 2017. The non-parole period is 18 months commencing 30 March 2014 and expiring on 29 September 2015. 39. Under s 50 of the Crimes (Sentencing Procedure) Act, I make an order directing your release on parole at the end of the non-parole period on 29 September 2015. HIS HONOUR: Just have a seat for the moment, Mr Glare, I will explain that all in a moment. Mr Barron and Mr Thomas, first the sums, please. THOMAS: Yes, I agree with the dates your Honour indicated. HIS HONOUR: Good, right. Are the sums correct? BARRON: I agree as well. HIS HONOUR: Okay, now conditions of parole, please? THOMAS: Certainly rehabilitation has loomed large in the submissions that we have made. HIS HONOUR: Yes, he should be supervised. THOMAS: Certainly supervised and obey any direction as to rehabilitation and counselling and the like. HIS HONOUR: Okay, do you agree? BARRON: Yes, definitely. 1. The conditions of parole are these: 1. that he be of good behaviour; 2. that he notify the Registrar of this Court of his address and any change of that address; 3. that he attend court if he receives a notice to do so; 4. that he accept supervision from Community Corrections and follow all reasonable recommendations and directions of officers of that service, particularly regarding referral to a job network, referral to community health, drug and alcohol counselling and any residential rehabilitation. HIS HONOUR: Anything else? Any other formalities? THOMAS: Two formalities are the s166 matters. One is on exhibit B which is the possess housebreaking implements 0166. I would simply ask your Honour for a s 10A conviction, no other penalty. HIS HONOUR: Exhibit C? THOMAS: B. That one offence wasn't on a form 1, it was a related offence. Possess housebreaking implements. 1. In respect of the possess housebreaking implements offence, the subject of a certificate under s 166 of the Criminal Procedure Act 1986 contained in exhibit B, under s 10A of the Crimes (Sentencing Procedure) Act, I convict Mr Glare and I dispose of the proceedings without imposing any other penalty. 2. Indeed, I should add that I convict Mr Glare of all of the seven offences that I sentenced him for as well. HIS HONOUR: What is the other formality? THOMAS: The other is on exhibit D, there is a matter on the 166. It is a backup offence, so I would seek that matter just be withdrawn. HIS HONOUR: You seek leave to withdraw it, is that what we do? BARRON: No objection. HIS HONOUR: Okay. 1. I grant leave to the prosecutor to withdraw the backup offence contained in the certificate pursuant to the Criminal Procedure Act 1986 s 166 in exhibit D. HIS HONOUR: Is that it? Are they all the formalities? THOMAS: Yes, your Honour. HIS HONOUR: Okay. Mr Glare, you have got a three year prison sentence. I backdated it to 30 March this year, so it finishes on 29 March 2017. Normally, your non-parole period would be two years and three months, but I have reduced it to 18 months because of the support you will need in the community when you get out, so you have got a longer parole period to get on with your rehabilitation. As I said, it is a vice-like grip, as you well know more than I do. I have directed your release on parole on 29 September next year and the conditions of your parole are you have got to stay out of trouble. If you breach parole, then you are back before me or the Parole Authority. When you get out, you have got to let the Registrar of this Court know where you are living and if you change your address you tell them as well. If you get a notice to turn up to court, you have got to turn up rather than have the Sheriff and the police chasing after you. And the most important condition is that you allow the Community Corrections Service to supervise you. They are the old Probation and Parole. They know what they are doing and they are used to dealing with people like you. You are well-motivated and well supported, so I imagine they will be able to offer you a lot of help and they will send you in the direction of job networking, drug and alcohol counselling and particularly perhaps residential rehabilitation. Or they will support your own efforts in doing all of that as well. They will help you integrate back into the community and they will do a good job too. I will give my associate the exhibits. Do you understand that? OFFENDER: Yes, your Honour, I do. HIS HONOUR: All right. I am confident that you will get on with your life and that you won't have any trouble from here on. ********** Amendments 07 April 2015 - minor changes to formatting - paragraphs renumbered 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: 07 April 2015