R v Gaul [2014] NSWDC 306

District Court New South Wales

Medium Neutral Citation: R v Gaul [2014] NSWDC 306 Decision date: 18 December 2014 Jurisdiction: Criminal Before: Cogswell SC DCJ Decision: A sentence of imprisonment for two years wholly suspended on condition of entering into a good behaviour bond for two years. Catchwords: CRIMINAL LAW - particular offence - aggravated break enter and steal - plea of guilty at earliest opportunity - 25% discount - sentence - relevant factors - prior criminality - previous convictions - no previous history for similar offence - offence committed while on conditional liberty - longstanding problem with alcohol and prohibited drugs - response to charges - demonstrated remorse - deterrent effect of custody - need for drug rehabilitation recognised - time spent in custody taken into account - Form 1 for 2 offences taken into account - specified reasons for suspended sentence Legislation Cited: Crimes Act 1900 (NSW), ss 112(2), 114(1)(b), 527C(1)(a) Crimes (Sentencing Procedure) Act 1999 (NSW), s 12 Category: Sentence Parties: Regina (Crown) Martin John Gaul (offender) Representation: Counsel: S Harris (Crown)

Solicitor: R Fraser (Legal Aid New South Wales) (offender) File Number(s): 2014/00177283

Judgment 1. I am sentencing Martin John Gaul. He has pleaded guilty to a crime called aggravated break, enter and steal. That is an offence against s 112(2) of the Crimes Act 1900 (NSW). Parliament regards it as a serious offence because it has fixed a maximum of 20 years imprisonment to the offence. Not only that, Parliament regards it as so serious that it has additionally fixed a five year standard non‑parole period. HIS HONOUR: I will just depart from my remarks on sentence. Have I asked Mr Gaul whether he adheres to his plea? I can't remember? FRASER: Yes. That was asked of him yesterday. HIS HONOUR: Yesterday. FRASER: He confirmed that. HIS HONOUR: Have we checked with the Form 1 offences. Mr Gaul, you're asking me to take into account the goods in custody and the housebreaking implements when I sentence you, that's right, isn't it? OFFENDER: Yes. HIS HONOUR: And you admit your guilt for that? OFFENDER: Yes. HIS HONOUR: Yes. Good. I will return to my remarks on sentence. 1. When I am sentencing him for the aggravated break, enter and steal, Mr Gaul has asked me to take into account two other offences. One is possessing housebreaking implements which is a crime against s 114(1)(b) of the Crimes Act. Parliament has fixed a maximum of seven years imprisonment to that offence. The other offence he has asked me to take into account is one of goods in custody which is an offence against s 527C(1)(a) of the Crimes Act carrying a maximum of six months imprisonment. I will take into account those two offences when I am sentencing Mr Gaul and I have signed a certificate to that effect. 2. It is important for a judge in sentencing an offender to set out briefly what happened so that an assessment can be made of just how serious an example of the particular crime the offence was that the judge is sentencing the offender for. 3. The crime in this case occurred in the early hours of Saturday morning 14 June 2014 at a block of units in Botany Road, Botany. One of the residents was woken up and when he looked through the window he saw household items scattered around the ground at the back of the block near the laundry. There is a common laundry on the ground floor at the back of unit block that is only accessible via an external door opening onto the backyard of the units. 4. The resident saw Catrina Moy looking through the window into the laundry. She said a number of times "Babe, we got to go." The resident bravely went down and asked Ms Moy what was going on. She claimed that she and her partner were moving into the units. The resident at that stage had seen a number of items belonging to himself amongst those scattered around in the backyard. Ms Moy was a little vague about whom she was moving in with. 5. The resident sensibly phoned the police and again overheard Ms Moy saying, "I can't carry anymore. I can't fit anything else in my hands." The police arrived and introduced themselves. 6. At this stage Martin Gaul was on the scene. He had been inside the laundry. He claimed that they were visiting a friend in one of the units and that they themselves lived nearby. 7. The police saw the items scattered around and they saw the window open and something hanging out of it. The laundry door itself was closed and locked. The police saw a large amount of property stacked up along the wall. They found a lot of property in a backpack that Mr Gaul had. Mr Gaul persevered in explaining that he was "just getting my tent out of the storage room so I had somewhere to sleep tonight." The resident identified to the police a number of items that belonged to him or his family that were spread around the backyard. 8. The facts which are part of exhibit A record that both Mr Gaul and Ms Moy "had been inside the laundry, gaining access to it by opening and climbing through the previously closed window." Mr Gaul was inside the laundry handing items outside to Ms Moy who was packing them up. They had put some around the side of the house. Mr Gaul and, as it happens, Catrina Moy were both charged with aggravated break, enter and steal. The aggravation is the fact that they were in company. 9. It is also important for a judge to say something about and to take into account the personal circumstances of an offender starting with any criminal record. 10. In this case Mr Gaul has a criminal record. He did not start offending until his early 20s. Then he has a number of convictions including larceny, malicious damage, possessing drugs, apprehended violence orders matters and common assault. He has served community service orders, periodic detention and home detention. Most of the cases were dealt with in the Local Court. 11. Mr Gaul has been in custody since his arrest on 14 June 2014. It is significant to note that when he committed this offence Mr Gaul was on bail in respect of other offences and his bail was revoked, so I need to take into account that factor as well. 12. Ms R Fraser, who appeared for Mr Gaul, called her client to give evidence. She also tendered some helpful material in respect of her client including a report from a medical practitioner Dr Phil Wiren. Mr Gaul in evidence confirmed that he had been seeing Dr Wiren fortnightly for some three years. Mr Gaul also confirmed that the material contained in Dr Wiren's report as well as another report from a clinical psychologist Michelle Player was truthful insofar as it recorded things that he had said. 13. One matter which Mr Gaul to his credit disclosed is in evidence and which did not appear in the reports is that he spent some time addicted to heroin. He was apparently too ashamed to acknowledge that to the doctor and the psychologist. He acknowledged in evidence a longstanding problem with alcohol and prohibited drugs of dependence. To his credit he had been attending a Drug and Alcohol Support Group weekly in Darlinghurst, and again to his credit he said that he is not taking any illegal drugs in custody. 14. This is Mr Gaul's first time in custody apart from periodic detention and Ms Fraser asked him about it. He described it graphically by saying that his "nerves were shot". He demonstrated this by picking up a cup in the witness box. It was obvious that his hand was shaking. He has been assaulted once in prison and was stood over a second time. He is currently in protection. At Parklea he obtained or was looking for work in the print shop. He said that he finds prison very stressful and frightening. 15. Ms Fraser asked her client what he intended to do when he was released. He has a truck licence. He has experience in the past as a driver. He wants to upgrade his licence. HIS HONOUR: Have you already got it, the MC? OFFENDER: Yeah, I don't have to upgrade because I've got a licence. HIS HONOUR: You've got the MC already, haven't you? OFFENDER: Yes. HIS HONOUR: Yes. His licence includes one which means that he can drive semitrailers and he is going to get some work of that kind which he has done before. He is going to move in with his brother who is a single man living in Botany and whom he has lived with before. 1. He acknowledged not remembering much about the offence. He had taken a lot of Serepax but he did say how ashamed and deeply sorry he was that he had committed it. 2. Under cross-examination by Ms S Harris who appeared as the Crown Prosecutor Mr Gaul explained that his brother has had no problems with the police and has no criminal record. He is in a relationship with his co-offender Catrina Moy but they will live separately when he is released. He wants to pursue some counselling to deal with his drug and alcohol addiction, although he says that he ceased drinking alcohol some years ago. He has also tried to come off drugs but evidently has had relapses, including the night of this crime. He explained that in prison he has put on a lot of weight and got his life back and does not intend to throw it away again by using illegal drugs. He would be prepared to do rehabilitation if necessary. He said that the biggest deterrent is being imprisoned again and he does not want to have to return. 3. As I said, the material tendered by Ms Fraser was very helpful. Mr Gaul is being treated by a sympathetic and supportive medical practitioner who diagnosed Mr Gaul as suffering from a "schizoaffective psychosis". I take into account that he is a not a psychiatrist but it is clear from the symptoms and the medication which has been prescribed for Mr Gaul in the past and currently that he has a mental health issue. Dr Wiren prescribed a management plan for his patient and assessed the factors for and against a positive prognostic outlook. He said that if Mr Gaul stays away from prohibited drugs and stays in good health and accepts support from those who can help him then that will point favourably to a good outlook. He thought that the overall prognosis was basically optimistic. 4. Ms Fraser arranged for her client to be assessed by a forensic psychologist Michelle Player. Ms Player took a history of a childhood which she recorded as "characterised by his father modelling alcohol abuse on a nightly basis." Mr Gaulhimself described his father as "a violent drunk." 5. Mr Gaul and Ms Moy have an 18 month old daughter but the daughter was removed from their care and placed in foster care at birth. He was in a former relationship for some nine years and has two sons from that relationship. They are now aged 13 and ten. He was apparently "devastated" when that relationship broke up and he responded by misusing alcohol for some years. He developed a cannabis habit and acknowledged that he was taking cannabis on the night of the offence. He has had past problems with amphetamines and abuse of prescribed medications including, as I said, taking some 15 Serepax tablets on the night of the crime. 6. Ms Player also noted the anxiety which Mr Gaul is experiencing as a result of being in prison. She thought that he is "a psychologically vulnerable man who demonstrates poor insight with regard to his psychosocial function and behaviour." She thought that Mr Gaul "would benefit from receiving support whilst in custody as well as substantial professional interventions as he transitions to the community." Ms Player thought that Mr Gaul's "main recidivism risk is that he will relapse to illicit drug or excessive alcohol use upon his release from gaol." 7. Ms Player thought that "gaol is unlikely to offer as much rehabilitative opportunity to Mr Gaul as compared to supervised, supported residence in the community where he can pursue stable employment, participate in pro‑social activities and better draw upon his brother's support." Ms Player expressed the opinion that a "sentence that allows him to maximise his time in the community under supervision and appropriate interventions ... should help in reducing his risk of recidivism." 8. Ms Fraser also prepared some very helpful and well-articulated written submissions on behalf of her client. She submitted that the offending was "an opportunistic, poorly planned, and poorly executed example of a break and enter type offence." She also argued that the offence occurred late at night so that it would be less likely that residents would be around and that there was no damage and little property taken; in fact all of it was recovered. I accept those submissions. 9. Ms Harris agreed that the offending was towards the lower end of the scale. She reminded me of course that nevertheless Parliament has fixed a standard non-parole period of five years imprisonment to the crime. She pointed to Mr Gaul's persistence in his efforts in persevering with the crime. She also reminded me that Mr Gaul was on conditional liberty at the time but acknowledged that there was no previous history of any break, enter and steal offence. Ms Harris also pointed out that Mr Gaul had benefited from leniency from the courts before and fairly acknowledged that his remorse seemed genuine. She proposed that his biggest concern was a need for drug rehabilitation. 10. I also took into account - in agreeing that the crime was at the lower end of seriousness - Ms Fraser's submission about the drug use on the night tending to show that the crime was "impulsive, unplanned and unorganised." 11. Ms Fraser submitted that her client is unlikely to reoffend. I think she is right in suggesting that so far as this specific kind of crime is concerned. Nevertheless he does have a record for other less serious offending. She proposed that her client's prospects of rehabilitation were good because of his previous compliance with supervision, his early plea, accepting responsibility and the impact of prison. She also drew my attention to her client's personal background. This is, she reminded me, her client's first period of full‑time custody. 12. Ms Harris and Ms Fraser parted ways in regard to the kind of sentence which should be imposed. Ms Harris argued that this crime can be met only with a sentence of full‑time custody. She made it clear that the time served to date is insufficient. On the other hand Ms Fraser argued that it is open for me to impose a sentence other than full‑time custody, including a suspended sentence. 13. Given that this offence lies at the lower end of the range for seriousness and the limited previous record for this kind of crime I would regard an appropriate sentence for Mr Gaul as being one of two years and eight months imprisonment. However, he has pleaded guilty at the earliest available opportunity. I will therefore discount that sentence by 25% to represent that plea. Accordingly, I would regard an appropriate sentence as being one of two years imprisonment. 14. It is at this point that I need to decide what to do with the opposing submissions of Ms Fraser and Ms Harris. I have decided to suspend the sentence of two years imprisonment and to direct Mr Gaul's release today on a good behaviour bond that will accompany that suspended sentence. 15. My reasons are these. First, Mr Gaul has already served some six months imprisonment as a result of this offending behaviour. I acknowledge that part of that may be because his bail was refused or revoked in respect of other offending. Nevertheless, as a result of a crime that he committed, he has now spent the last six months in prison. 16. Secondly, I regard the impact which prison has had on him as genuine. He is obviously scared out of his wits by the environment that he finds himself in and I accept that it has had a very deterrent effect. 17. Thirdly, Mr Gaul seems to have a settled plan which will contribute to some stability in his life. That plan involves not only accommodation but also employment which he is qualified for. 18. Fourthly, I think it is important in Mr Gaul's case that he receive as much benefit as possible from supervision and support within the community. In that regard I give some weight - some significant weight - to the reports of Ms Player and Dr Wiren. I would regard it as more desirable that, rather than a shorter non-parole period and longer parole period being less than two years, Mr Gaul should use the whole of the two years in his efforts to stabilise himself and get support and help. I also take into account Ms Fraser's submission that her client has a track record of rehabilitation when he stopped his alcohol consumption at some time in the past. 19. Finally, I confirm that I take into account that Mr Gaul has already spent a period of time in custody and I bear that in mind in suspending the sentence. HIS HONOUR: I am going to sentence you now, Mr Gaul, if you would stand up. 1. I convict you of the offence of break, enter and steal. I impose a sentence of two years imprisonment. I make an order under s 12 of Crimes (Sentencing Procedure) Act 1999 suspending the execution of the whole of the sentence for the whole of the period and I direct that you be released from custody on condition that your enter into a good behaviour bond for two years. The conditions of the good behaviour bond are these - 1. That you be of good behaviour. 2. That you notify the registrar of this court of your residential address and any change. 3. That you attend court if you receive a notice to do so. 4. That you accept supervision from Community Corrections and accept all reasonable recommendations and directions from any officer of that service. HIS HONOUR: I will go through that again in a moment, if you will just have a seat. Ms Fraser and Mr Allison, any other conditions? FRASER: No, your Honour. HIS HONOUR: It's just a general supervision by Community Corrections and they can work out what his needs are. FRASER: I think that's the most appropriate course, your Honour. HIS HONOUR: Mr Allison? ALLISON: No more, in terms of that, your Honour, I don't submit there be any further conditions required. I would wonder if your Honour's minded to make an order for the transcript of these proceedings, particularly in relation to the co-offender. HIS HONOUR: I will, I will make that direction now. I'll make the order that my remarks on sentence, indeed, of the proceedings, I suppose of his evidence as well. So I direct of transcript of yesterday's proceedings and today's remarks on sentence to be made available to me on or before, what's the date for Ms Moy? FRASER: 20 March 2015. ALLISON: 20 March. On or before 18 March 2015. HIS HONOUR: Mr Gaul, you've got a suspended sentence. I should put it this way, you've got a gaol sentence of two years. OFFENDER: Yes. HIS HONOUR: And I've suspended that. OFFENDER: Yes. HIS HONOUR: It's still a gaol sentence. OFFENDER: Yes, I understand that. HIS HONOUR: Yes. You need to be processed by Correctives today and you need to be signed up for your good behaviour bond. OFFENDER: What do you mean by "processed by Correctives"? HIS HONOUR: They're going to release you today, I imagine, I don't know. OFFENDER: At the courthouse or at Parklea? HIS HONOUR: I'm not sure, let's ask. What's normal? They're usually released from here but that's, as he said, usually, I don't know whether you've got stuff at Parklea or not, do you, you've probably got some belongings there or you don't? I will leave that to them but you will be released by the sounds of it today but they've got to get forms filled in and things like that. But the important thing for you to remember is you've got a two year prison sentence dating from today but I have suspended it and what's important to understand about a suspended sentence is it's not like a normal good behaviour bond. If you breach a suspended sentence the law makes it very hard for the judge not to send you to gaol. So if you come back before me in the next two years having done something wrong and being breached, my hands are pretty well tied and I've got to send you back in. OFFENDER: Yes. HIS HONOUR: Now that's important for you to understand. You made a very big impression on me yesterday about prison and how you're responding to it, so if you don't want to go in, back in-- OFFENDER: No. I don't want to go. HIS HONOUR: I know you don't. So you keep clean for two years. OFFENDER: I will. HIS HONOUR: All right. The second thing is I have made, conditions are, that you've got to obviously stay out of trouble. If you get a notice to come back to court you turn up rather than having the police and Sherriff's Officers chasing after you, and let the court know where you're living, your brother's address. Are you going to go there today? OFFENDER: Yes. HIS HONOUR: What's his address? OFFENDER: 3/24 Chelmsford Ave, Botany. HIS HONOUR: 3/24 Chelmsford Ave, Botany. OFFENDER: Yes. HIS HONOUR: And his name is David Gaul, isn't it? OFFENDER: Yes. HIS HONOUR: Yes, David Gaul. Okay, well there's no need for you to notify the court we've got it on record now but if you change that address you let them know. And the last thing is you've got to let Corrections, which is the old Parole Service, Community Corrections supervise you and look after you because look you've got a drug addiction and an alcohol addiction. You've got a good track record, you've dealt with it as Ms Fraser points out but you know you'd taken all that Serepax, taken the cannabis and look where you found yourself - in someone's backyard doing what you did and you're here in court having spent six months in prison. So you need to deal with that or you'll be back. They'll help you and they will encourage you with your employment. So let them help you, and that's a condition that you agree to comply with what they suggest. Does all that make sense? OFFENDER: That's good. HIS HONOUR: All right, good, I'm going to check with Ms Fraser. FRASER: Yes, your Honour, just something that's come to mind, ordinarily you may direct the offender to attend Probation and Parole or Corrective Services within a seven day period. HIS HONOUR: That's a good point. What's the nearest place, Botany, so what would be the-- FRASER: It's probably the city office at Wentworth Avenue. OFFENDER: The city. HIS HONOUR: The city office at Wentworth Avenue. OFFENDER: Yes. Part of the order will be that you attend the city office of the Community Corrections Service on or before next Wednesday 24 December 2014. HIS HONOUR: Now that's less than a week but I want you to turn up before Christmas, that's why I've given you that time. I don't want to leave it until after Christmas because it might be too long. I want you to be focussed, get to Wentworth Avenue, sign up with them and start getting help now so that you can get back on track. OFFENDER: I'll be there tomorrow. HIS HONOUR: Good on you. Anything else, Ms Fraser? FRASER: No, your Honour. HIS HONOUR: Mr Allison? ALLISON: No, your Honour. HIS HONOUR: Thank you both for your assistance. Good luck. OFFENDER: Thanks a lot, your Honour. HIS HONOUR: I will now adjourn.