R v Pintley; R v Barber [2017] NSWDC 224

District Court New South Wales

Medium Neutral Citation: R v Pintley; R v Barber [2017] NSWDC 224 Hearing dates: 12 May 2017 Date of orders: 12 May 2017 Decision date: 12 May 2017 Jurisdiction: Criminal Before: Berman SC DCJ Decision: Barber – Referred for assessment as to her suitability to serve her sentence by means of an Intensive Corrections Order Pintley - Sentenced to imprisonment and set a non-parole period of 14 months with a head sentence of 2½ years. Catchwords: CRIMINAL LAW – Sentence – Break enter and steal – One offender on parole at time of offending – Long term drug addiction Cases Cited: Bugmy the Queen [2013] HCA 37 R v Fernando (1992) 76 A Crim R 58 Category: Sentence Parties: The Crown Damien William Pintley Laura Zena Barber Representation: Counsel: Mr D Terracini – Offender Barber

Solicitors: Director of Public Prosecutions Legal Aid Commission – Offender Pintley File Number(s): 2016/1993612016/199229

SENTENCE 1. HIS HONOUR: As Mr Damien Pintley, one of the offenders in this present case looks around in gaol at his fellow prisoners he would see many people like him, people who have committed offences in order to satisfy a drug addiction. The gaols would be almost empty if in some way the problems of offending by drug addicts in an effort to obtain money to obtain drugs could be solved. 2. Both offenders in the present case, both Mr Pintley and his co-offender Laura Barber committed the for offence which I am to sentence them whilst they were using drugs in an effort to obtain money to buy drugs. 3. They were in a relationship, both agree now that it was a poor relationship and that the stresses of that relationship added to the problems that they both faced as long-term drug users. 4. Early one morning in June 2016 they went in Ms Barber's car to Flemington Plaza. Mr Pintley, who was more experienced at this sort of thing, tried to open various shop doors until he got to a shop called Pedro's Pies. He was not able to open the door so both he and Ms Barber went to her car to fetch a housebreaking tool. Mr Pintley took the jimmy bar and Ms Barber collected a white shopping bag. They both went back to Pedro's Pies. There Mr Pintley forced open the front door while Ms Barber stood nearby as a lookout. Ms Barber gave Mr Pintley the light shopping bag that she had collected from the car intended to assist Mr Pintley in removing things from the shop. She did go into the shop briefly for about five seconds but largely performed the role as a lookout. They eventually left the shop having taken about between $200 and $400 in cash from the till, an iPad and a passport as well as two folders containing another passport and some lease documents. They drove away. 5. It was not long before police worked out who was involved Ms Barber complied with a request to provide information to police about who was in the car at the time. She admitted it was her with Damien Pintley. Mr Pintley made things easy too by leaving fingerprints behind, and most of the actions of both offenders were captured on CCTV cameras. 6. Mr Pintley was on parole at the time of this offence. He has a lengthy criminal history. There are many prior convictions for break, enter and steal offences and he has gone to gaol on many occasions. It has to be said that while this offence is part of Mr Pintley's attitude of disobedience to the law, it is an attitude he says has now changed, a matter to which I will return. Ms Barber has a criminal history too, but there are no offences of this kind and she has never been to gaol before. 7. Both offenders pleaded guilty at the earliest opportunity and so the sentence I will impose on both of them will be 25 per cent less than it would otherwise have been. 8. It is for me to assess the objective gravity of their conduct and I note immediately that these were non-residential premises. Breaking into a person's home is much worse than breaking into a person's business. That is not to say that breaking into business premises is not serious but it is to say that breaking into someone's home is much worse for obvious reasons. When you break into someone's home you invade the security of their home and that often has emotional consequences for householders, they feel less safe as they sleep in their beds at night and things taken from a person's home are often of sentimental value. Householders deeply feel the loss of such things even if their monetary value is very low. Finally, of course anytime you break into someone's home there is a risk that someone will be there. In this case, given the time in which the offence occurred the chances that someone would be inside were very slim indeed and so as offences of break, enter and steal go, this was an offence well below the middle of the range of objective seriousness. 9. Not too much emphasis can be placed on the differing roles performed by the two offenders. After all each had their role to perform and they did it. It was Mr Pintley's role to break in and then steal things, and it was Ms Barber's role to wait outside and make sure that no-one chanced upon them. That said, it does appear that Mr Pintley played the more significant role. 10. Of course, given that I am sentencing two offenders for the same offence, it is important that I apply the principles of parity. Neither offender should have a justifiable sentence of grievance when he or she compares the sentence imposed on his or her co-offender. 11. The two offenders share something in their backgrounds and that is that they began to use drugs at a very early age. In Mr Pintley's case, this came about after his parents separated and his mother formed a new relationship with a person who turned out to be a drug dealer. Mr Pintley was exposed to drug use and drug supply at a very early age. On top of that, his mother focussed her attentions more on her relationship with her new partner rather than bringing up Mr Pintley. He received very little adult supervision as a child and was effectively allowed to do what he wanted for many years. 12. The situation where illegal behaviour is modelled, where drug use is treated as normal and where criminal behaviour is not hidden, coupled with an almost complete absence of boundaries often enough ends up in a situation like that faced by Mr Pintley today. He is a person with a long-term drug addiction and a substantial criminal history. On top of everything I have mentioned Mr Pintley had an added challenge in his life because as a seven year old he was molested by an adult with whom he was working delivering papers. Mr Evenden appropriately relies on the principles that are to be found in Bugmy the Queen [2013] HCA 37 and R v Fernando (1992) 76 A Crim R 58, I have taken those principles into account in a significant way. 13. Things are not all bleak as far as Mr Pintley is concerned. Looking at his criminal history reveals that there are some gaps. He has on occasions been able to live drug free for a period of time and has been able to hold down a job. He has two children, his mother looks after them, one of them full-time and the other on the weekend. Mr Pintley spoke of a recent conversation he had with his 11 year old son which brought home to him how, as a 37 year old he is missing a great deal through his constant offending and resulting periods in custody. 14. He has plans upon his release from custody. He will live with his mother. He will go to Narcotics Anonymous. He understands the impact of his offending and his incarceration upon his children. I accept that he is very genuine in his desire to put his drug use and resulting offending behind him but Mr Pintley knows as well as anyone that things aren't going to be easy for him. He has a realistic attitude to the problems of drug use and the difficulties of rehabilitation. He has made efforts to get into residential rehabilitation and was almost accepted into WHOS before he was arrested for the offence for which I must sentence him. 15. Ms Barber did not have the same challenges in life that Mr Pintley had. She had different challenges. She struggled with depression, anxiety and shyness as she was growing up and when she was introduced to marijuana, alcohol and recreational drugs she found an escape. She has been in a series of relationships where she was made to feel worthless and where drug use was an accepted part of their relationship. 16. She has children who are being cared for by her parents and she too understands the need to overcome her drug addiction. She told me in evidence that she had not used drugs for six weeks but positive urinalysis reports have been received in more recent times. She denies use of drugs related to those urinalysis reports. At this stage I have no way of knowing the accuracy of what Ms Barber told me as regards her recent drug use. 17. Although I am satisfied that in Ms Barber's case that a custodial sentence is required, at this stage I am not satisfied that it must necessarily be one of full‑time custody. I have decided the length of the sentence to impose upon Ms Barber and would be assisted by receiving an assessment as to her suitability to serve her sentence by means of an intensive corrections order. I will read the results of that assessment with some interest. As part of the assessment she will be tested. If it turns out that she uses drugs in the assessment period, then even if she is otherwise suitable for an intensive corrections order I probably will not impose that form of sentence, instead sending her to gaol full-time. If on the other hand she has not used drugs then that makes it more likely that she was telling the truth when she told me in evidence she has not used drugs for six weeks. If she is therefore suitable I will most likely impose a sentence to be served by means of an intensive corrections order. 18. In Mr Pintley's case Mr Evenden made a submission that his client should be released from custody relatively soon with an extended period of supervision on parole. One difficulty with that is the circumstance that Mr Pintley is actually currently serving the balance of parole having committed this offence whilst he was on parole. It is important I do not double count of course but I have decided that the sentence I am about to impose on Mr Pintley should not commence on the date he was returned to custody, instead it will commence three months afterwards on 30 September 2016. 19. Another difficulty with accepting Mr Evenden's ultimate submission is that Mr Pintley needs to be punished for what he has done. There needs to be an element of specific deterrence involved. General deterrence is important too even if not a full measure of general deterrence is included in the sentence I am about to announce because of matters personal to Mr Pintley. 20. As it turns out Mr Evenden's submission that I should fashion orders such as that Mr Pintley is released from custody in either September or October this year is not greatly different from the release date that I have formulated. There are special circumstances, they relate to Mr Pintleys long history of drug use and the need for an extended period of supervision on parole to assist him to overcome that drug history. 21. In Mr Pintley's case I sentence him to imprisonment and set a non-parole period of 14 months to date from 30 September 2016 with a head sentence of two and a half years. That means Mr Pintley's non-parole period expires on 29 November 2017 on which day Mr Pintley is to be released to parole.