R v Lincoln [2018] NSWDC 97

District Court New South Wales

Medium Neutral Citation: R v Lincoln [2018] NSWDC 97 Hearing dates: 29 March 2018 Date of orders: 29 March 2018 Decision date: 29 March 2018 Jurisdiction: Criminal Before: Berman SC DCJ Decision: Adjourned to 27th July 2018 when if accepted into a residential rehabilitation facility a s11 remand will be granted to permit the offender to attend. Catchwords: CRIMINAL LAW – Sentence – Form 1 – Break and enter – In company – Dishonestly obtain money by deception – Opportunity to enter into residential rehabilitation Legislation Cited: Crimes (Sentencing Procedure) Act Category: Sentence Parties: The Crown Bradley Lincoln Representation: Solicitors: Director of Public Prosecutions – Crown Legal Aid Commission - Offender File Number(s): 2017/55709

Judgment 1. HIS HONOUR: Bradley Lincoln appears for sentence today after having broken into some premises, with someone else, knowing that there were people inside and stealing material from those premises. This of course is a serious offence. It carries a maximum penalty of 20 years imprisonment with a standard non-parole period of five years. He is also to be sentenced for dishonestly obtaining property by deception,that relating to his use of some of the credit cards he took from the premises. On top of that each of those offences has Form 1 matters attached to them. The first involves Mr Lincoln's use of a car which he stole from a premises and the second relates to a whole lot of other dishonestly obtain property by deception offences, also through the use of the stolen credit cards. 2. It is undeniable that Mr Lincoln has had a childhood of extreme hardship and disadvantage. A psychological report tendered today sets out Mr Lincoln's background as follows: 5. Mr Lincoln described a childhood of extensive hardship and disadvantage. He was born in Sydney NSW to Australian parents, but he has never met his birth father and knows nothing of him. His mother and stepfather were both chronic heroin and amphetamine addicts and were actively engaged in broad criminality. There was no stability, moving from place to place without notice, sleeping on couches, in refuges, at times living out of a car. He recalls being directly exposed to domestic violence, serious drug abuse, crime and neglect. He saw the dead bodies of people who had overdosed and then watched as the body was moved and dumped to other locations. Both parents were arrested and imprisoned several times. Both served simultaneous sentences for a two year period when Mr Lincoln was aged eight years. He was made a ward of the state and was placed in various foster homes. He reacted poorly to these homes, not trusting anyone and running away frequently. He went back into the care of his mother when she was released. He recalled his parents instilling in him that authorities were his enemy ajid that no-one could be trusted. He recalled the home being raided by police on numerous occasions, being frightened and seeing objects be destroyed. This further consolidated his adversarial attitude towards authority and he was explosive in his temper during childhood. 6. Mr Lincoln could not identify a single positive role model or source of emotional security in his life during his development. He commenced serving periods in boys' homes from the age of 14 years. He thought this was normal. His parents separated permanently when Mr Lincoln was aged 20 years. He has continued to live intermittently with his mother throughout adulthood, mostly as a residence for his many releases from custody to parole. He was living with his mother at the time of the current offences. He has very little ongoing contact with his stepfather. His mother and younger sister are both currently in custody for criminal offences. He has one younger brother who is well adjusted, having established a career and a prosocial life, without drug abuse or crime. He said that he was close to his brother. He speaks with his brother on a weekly basis 1. Mr Lincoln is now 37 years of age. He gave evidence as to how he ended up committing these offences. He had been out of gaol for some time and not using drugs when he suffered an accident. He was run over. He was given drugs to assist with the pain which prompted his return to illicit drug use as well as heavy use of alcohol. He met up with one of his old associates through social media one night and whilst intoxicated he and his co-offender committed the offences for which he is to be sentenced. 2. Even though he is 37 he has developed few life skills which would keep him out of gaol. Part of the problem is, as he said in evidence today, that he only knows one person who has not been to gaol or with a criminal record. The role models he sees around him are people who regularly commit offences and regularly go to gaol as a result. 3. There is one bright light, however, his brother Brett. He is a good illustration of the fact that not everyone with a background of hardship and disadvantage ends up with a criminal history. He has no criminal history. He is successful and to his great credit he has supported his older brother over the years and continues to do so. Indeed he is in court today and speaks to his older brother regularly. 4. On top of that Mr Lincoln has been accepted into a residential rehabilitation facility. As is regrettably the case for almost all residential rehabilitation facilities there is something of a waiting list. Mr Lincoln has been on that waiting list for some time and it now appears that in about four months he would be accepted there if he were able to go. Mr Pace makes application that the matter be adjourned for four months and in the event that Mr Lincoln is accepted for residential rehabilitation it is further adjourned under s 11 of the Crime (Sentencing Procedure) Act to allow Mr Lincoln to attend residential rehabilitation. 5. In my view that would be of considerable assistance, not only to Mr Lincoln but also to the community. Mr Lincoln's criminal history indicates that he has on regular occasions in the past broken into people's houses, stolen from retail premises, had goods in custody, taken and drive conveyances and each time he has committed an offence then people suffer. If Mr Lincoln can be aided to put his criminal ways behind him then not only does he benefit but so does the community. 6. Ultimately of course the sentence I impose upon him must reflect the objective gravity of his crime. He broke into someone's premises while they were asleep. He stole valuable items from them. They suffered a loss, not only financially but probably much more importantly, through knowing that their privacy and security have been invaded. It may well be that even if Mr Lincoln does do well in his residential rehabilitation, in order to reflect the objective gravity of his conduct he needs to do some further time in custody after the s 11 remand period is over, but that can be determined at a future date. 7. The order I make therefore is this. The matter is adjourned until 2 o'clock on the 27th of July. On that date I will either adjourn the matter under s 11 to allow Mr Lincoln to go into residential rehabilitation, proceed to finally sentence him on that date, or, if his entry into residential rehabilitation would be delayed for only a further short period, I will adjourn the matter to allow that to happen. 8. I will order a drug and alcohol assessment including his suitability to enter a period of residential rehabilitation.