R v Tighe [2019] NSWDC 230

District Court New South Wales

Medium Neutral Citation: R v Tighe [2019] NSWDC 230 Hearing dates: 22 February 2019 Date of orders: 22 February 2019 Decision date: 22 February 2019 Jurisdiction: Criminal Before: Sweeney DCJ Decision: Sentenced to an aggregate sentence of three years six months imprisonment with a non-parole period of 18 months imprisonment Catchwords: Break enter and steal offences – low objective seriousness – pleas of guilty – on parole – social disadvantage – drug abuse – institutionalisation – special circumstances Cases Cited: Bugmy v The Queen [2013] HCA 37 Category: Sentence Parties: Regina (Crown) Nathaniel James Tighe (Offender) Representation: Counsel: Mr S. Jaeger (Crown) Mr S. Rees (Offender) File Number(s): 2018/00015736 Publication restriction: Nil

SENTENCE 1. HER HONOUR: Nathanial James Tighe pleaded guilty in the Local Court to four offences. They are: - an offence of break, enter and steal on 9 January 2018 at Drummoyne where he broke into a house and stole $300 in Australian currency. That offence has a maximum penalty of 14 years imprisonment. - an offence of break, enter and steal on 8 January 2018 at Drummoyne where he broke into a house and stole a white Apple iPhone valued at $700 and a black wallet containing identity and financial cards, valued at $160, and that offence has a maximum penalty of 14 years imprisonment. - an offence of having previously been convicted of an offence of break, enter and steal, entering a building with intent to steal, occurring on 9 January 2018 in Kensington Road, Summer Hill. That offence has a maximum penalty of 10 years imprisonment. - and an offence on 9 January at Drummoyne of entering a building being a common property laundry in Drummoyne with intent to steal. 1. Mr Tighe has also asked that when I sentence him for the offence at Bowman Road, Drummoyne on 8 January, I take into account three offences on a Form 1 which are having custody of property reasonably suspected of being stolen, giving false information to a pawnbroker and disposing of stolen property. 2. The principle in taking those matters into account in respect of that matter is that the sentence for that offence must be more than if I was dealing with that offence alone, taking into account the circumstances and seriousness of the matters on the form 1 which are similar, related in time and all of low seriousness. 3. The matter has proceeded by way of agreed facts. They indicate that the first offence, the offence in sequence 10, occurred between 12 and 12.15pm on Monday 8 January when Mr Tighe entered the house at 9 Bowman Street, Drummoyne by removing a flyscreen and forcing entry through a closed and locked window, entering a bedroom. He moved into another bedroom and stole a white Apple iPhone and the victim's wallet containing identity cards, financial cards, about $60 in cash and two $50 Myer gift cards. 4. He left through the front door. He was seen a short time later at a petrol station attempting to buy some goods with the credit card of the victim, which was declined. 5. The white Apple iPhone was in his possession when he was arrested and it was returned to the victim by police. 6. The next offence in time occurred between 5.15am and 3.15pm on Tuesday 9 January at Kensington Road, Summer Hill, when Mr Tighe entered a unit through a partially opened lounge room window, rummaged through drawers within the premises and moved out items with intent to steal something. A fingerprint was found on the inside of the window frame and Mr Tighe had been previously convicted of an offence of break, enter and steal. 7. The next offence of entering a building with intent to commit an offence of stealing occurred between 7am and 4pm on 9 January in Lyons Road, Drummoyne, when he went into a shared laundry room which is common property in a unit block. It was next to unit 1 which later police found showed some signs of someone trying to open the door. 8. Mr Tighe went into the laundry area and rummaged through some items with intent to steal something. He left fingerprints within the laundry and on the door of unit 1. 9. The other offence of break, enter and steal occurred on 9 January when Mr Tighe went into a unit at Lyons Road, Drummoyne, forced entry into the ground floor unit through the dining room window, which had an old window mechanism by which a metal arm is opened, he opened the window with that device and went into the unit. He rummaged through several rooms in the unit, stole a matching gold necklace and bracelet valued at $5,000 and at least $200 Australian currency. He left some fingerprints within the unit on the inside and outside of the dining room window and on a jewellery box. 10. The next offence is the Form 1 offence and the facts of those are as follows. In terms of the making a false statement to a pawnbroker and disposing of stolen property, between 8 January and 12 January, an unknown person stole property from a unit in Phillip Street, Stanwell, which included a green iPhone and some jewellery, a gold ring with a blue stone, a gold necklace and two gold bracelets. At some point Mr Tighe came into possession of those items and on 9 January he went to a pawn shop in George Street, Sydney, handed over the four jewellery items and sold them to the licensee for $140 in total. The items were later seized by police and identified by the victim. 11. The facts of the offence of having in his custody goods suspected of being stolen are as follows. Between 5 January and 7 January an unknown person stole property from a unit in Drummoyne, including a white Apple iPad. This was found in Mr Tighe's possession on his arrest and was returned to the owner. 12. On 10 January an unknown person stole property from a unit in Holt Street, Stanmore, including two tablet computers and an iPad mini, which were found in Mr Tighe's possession on his arrest and were returned to the owner. 13. On 15 January, Mr Tighe was driving a vehicle. Police pulled him over for a random breath test. They noticed some things about the car which raised their suspicion. They searched him and the car and they found in a blue backpack in the back of the car a number of electronic devices: two Apple iPhones, an iPad, two iPad minis, another phone and an electronic device. They are the subject of the goods in custody charge. 14. In terms of assessing the objective seriousness of the offences, I note that in those which have an element of committing a serious indictable offence the offence is stealing, which has been regarded by the Court of Criminal Appeal as a less serious indictable offence. 15. The first offence on 8 January in Bowman Street, Drummoyne, the factors are Mr Tighe entered by removing a flyscreen and forcing his way through a locked window. He stole an iPhone of value, which was later recovered when he was arrested and returned to the owner, a wallet, some cards and cash. There is no evidence of planning. Although such an offence is a typical break, enter and steal offence, I assess this one as of low objective seriousness. 16. The second break, enter and steal offence occurred on 9 January at Lyons Road, Drummoyne. He entered through a window with an old-style window opener. There was no damage to the window. He rummaged through several rooms. He stole jewellery worth $5,000, which is a not insignificant value, and $200 cash. The property was not recovered. There is no evidence of planning and Mr Tighe left his fingerprints around the premises. I assess that offence as of low objective seriousness. 17. The offence on 9 January at Kensington Road, Summer Hill, of entering a building having been previously convicted of a break, enter and steal offence, the factors are Mr Tighe entered the unit through a partially opened window, he rummaged through drawers, he moved some property but no property was taken. There is no evidence of planning. He left fingerprints behind, indicating he was not wearing anything on his hands. I assess that offence is of low objective seriousness. 18. In the offence on 9 January at 55 Lyons Road of entering the shared laundry in an apartment block, he rummaged through the laundry, there was nothing taken. There is no evidence of planning, indicated in part by Mr Tighe leaving behind fingerprints. I assess that offence as of low objective seriousness. 19. In terms of the Form 1 offences of making the false statement to the pawnbroker and disposing of the stolen property offences, there was not a great quantity of property involved and not a great deal of profit derived by Mr Tighe, so I assess that offence is of low objective seriousness. 20. The goods in custody offence involved a fair quantity of valuable property but I would still assess that as an offence of low objective seriousness. 21. Overall, his offending occurred over a short time, the main offences a matter of days, and the Form 1 offences taking the offending to just under a week. The offending was unsophisticated. Mr Tighe said to the psychiatrist Ms Godbee, and swore the truth of what he told her, that his offending was driven by desperation for drugs, which I accept. He has a longstanding drug habit which commenced in his adolescence which mitigates his offending in the sense considered in the Henry guideline judgment, that it distinguishes him from someone who commits those same offences with a different motivation. 22. There is an aggravating factor in that all the offences were committed while he was on parole for break, enter and steal offences. That does not increase the seriousness of these offences but it is a matter to be taken into account on sentence. 23. Mr Tighe is 37 and will turn 38 next week. He has lengthy criminal history which started with a stealing offence in the Children's Court in 1992 when he was 11. His first control order occurred in 1995 when he was 14. His first break, enter and steal offence occurred when he was 18 and he has continued steadily thereafter to commit offences, mostly break, enter and stealing offences, some car stealing offences and some drug possession offences. 24. His first prison sentence was imposed when he was 18 and he has been consistently in prison since then. 25. His solicitor, Mr Rees, has calculated that he has had 19 admissions into custody as an adult and of his adult life of almost 20 years he has spent more than 15 years in custody. 26. He was last on parole for 63 days before he committed these offences. 27. He said he does not want to be in gaol, he wants to change his life. 28. His personal history is set out in a report by Megan Godbee, psychologist, and I need to refer to a deal of the matters in the report which explains what brings Mr Tighe to court today with his history of offending. 29. She noted that his responses tended to be insightful as he drew reasonable links between his past experiences and his recent behaviour. 30. He grew up in Sydney. He described growing up around Redfern and Waterloo. He said his father left the family shortly before he was born and he had no contact with him throughout his childhood. His mother re‑partnered when he was an infant but that man was violent towards Mr Tighe's mother and the stepchildren. He said there was police involvement in their relationship on a near weekly basis and he was threatened by that man with being sent away or locked in the shed until he was 18. He began running away from home at the age of 10 to escape this man, spending his time on the streets and with antisocial peers. 31. He said that when he was young, his mother told them she had been raised in Moree and exposed to physical and sexual violence, and would tell them of her experiences and was distressed. He said his mother was violent towards him and the other children in an attempt to manage their behaviour. 32. He recounted an experience of sexual abuse when he was 10, the results of which have caused him distress throughout the rest of his life. 33. He said his older brother was eight years older than him and he looked up to his brother, and when his older brother began stealing, he followed his brother because he wanted to be like him. His brother and his friends began stealing cars and his stealing offences escalated from smaller to larger stealing offences. 34. He said he stole a cashbox when he was 11 and served a six month control order. He was housed in a hostel in Newcastle, where he was exposed to other antisocial juvenile offenders. He spent the rest of his teens between boys' homes, juvenile detention facilities, his mother's home, the homes of relatives and on the streets, until he began serving sentences in adult facilities at the age of 18. 35. He enjoyed primary school but attended at least 10 high schools in three years and that impacted on his literacy skills. He has not had a great deal of employment because he has spent most of his adult life in custody. 36. He began drinking at age 11. He was drinking in the park with boys by the age of 14. But his greater problem has been drug use. He smoked cannabis daily from the age of 13 until his late twenties. He gave up cannabis when he was in a rehabilitation program. 37. He began using heroin and cocaine at 17. At one point he was on a buprenorphine program and could not use heroin, and he began to use methylamphetamine at that stage, the drug known as "ice". 38. He has completed rehabilitation programs, the first one at 18, and he has also completed the Compulsory Drug Treatment Correctional Centre program, but it appears that the results of those programs have not enabled him to maintain strategies for staying drug-free and not relapsing into drug use and reoffending. 39. He has a good relationship with his mother. He said she now has emphysema and that was one reason why she was unable to come to court today to support him, but he said she supports him. 40. Mr Tighe told Ms Godbee that when he was younger his offending was motivated by the desire for things his older brother had which he regarded as cool, but once he began using drugs his stealing was driven by desperation for more drugs. He also has identified a pattern of becoming anxious when he does not have stable accommodation and that has also triggered his return to drug use, and in the weeks before these offences he said he had been living at his mother's house but she had been talking about him needing to move out, and that was one reason why he returned to drug use. 41. He told Ms Godbee, as he said in evidence, he regrets his offending behaviour and the impact it has on his victims. He said to Ms Godbee and in his evidence today he has some support from the Community Restorative Centre who offered him some transitional accommodation which would assist him. 42. He said he was diagnosed with depression and anxiety in his early twenties. He is currently prescribed an antidepressant. 43. He has some trauma responses triggered by his worry about not having a safe place to live, from his childhood experiences of living on the streets and also because of his childhood experiences of physical and sexual abuse, and he intends to have treatment from a psychologist at the Aboriginal Medical Service when he is able to. 44. Ms Godbee noted Mr Tighe's experience of being born into social disadvantage and his mother's trauma which was reported to him and which affected his mother's parenting capacity and exposed him to role models of substance abuse and other antisocial behaviours. 45. He experienced violence himself, physical and sexual, as a child. She described his early substance abuse as a maladaptive attempt to manage his distress which contributed to his instability and fear, and thereafter there was a cycle of returning to drug use. 46. She said he has been institutionalised from an early age. He has some distorted beliefs about drugs and he has antisocial peer influences, and a lack of stable accommodation contributes to his drug use. 47. She said he presents with appropriate insight into his problematic beliefs and behaviours. He appears motivated to engage in a drug program and have some treatment for his mental health issues. 48. She noted his previous engaging in rehabilitation activities in the past but he has struggled to make lasting changes. She said he will need intensive support, particularly in the early months of his transition back to the community, because his history shows that he does not last long on parole before reoffending. 49. She said he has multiple rehabilitative needs. He needs to engage in an intensive drug and alcohol rehabilitation program with treatment focusing on ways to manage triggers to lapses and challenging the negative beliefs that contribute to his relapses, and he also needs some psychological treatment to assist him with his history of trauma and to develop more adaptive emotion regulation skills. She said he will need intensive support to break his pattern of offending. 50. The Crown submitted that the Court would not be satisfied that Mr Tighe's childhood deprivation enlivens the principles in the High Court's decision of Bugmy, but in my view it does and I take that into account. It reduces his moral culpability for this offending by his childhood experiences and what Ms Godbee described as his maladaptive response by beginning to take drugs at a very early age. The drug use began in his early adolescence and has continued in a cycle of drug use, some short periods of abstaining from drug use but relapsing into drug use and reoffending. He has undertaken rehabilitation in the past but has not reached the stage of being able to avoid relapsing into drug use and reoffending. He acknowledged in his evidence today he needs more help and he is prepared to accept that, including residential rehabilitation and some psychological counselling. 51. He acknowledged the court must be guarded about his plans for his rehabilitation and his prospects of success given his past, and that must be so. He has some offers of support from the Community Restorative Centre in terms of accommodation which has in the past been a trigger for his reoffending, and that provides some positive support. 52. He expressed remorse which I am satisfied is genuine and not just concern for his own situation. He expressed victim empathy which again was genuine. 53. As Ms Godbee noted, he has substantial treatment needs which constitutes special circumstances to reduce the non-parole period from the statutory ratio by, in his case, a substantial amount because of that constellation of needs. 54. Also his long ago diagnosed and treated depression will make his time in custody more difficult than someone without that condition. I note that during his last period in custody he has had the role of Aboriginal delegate which is a responsible role. 55. He breached his last parole because of a failure to comply with the drug treatment orders and committing these offences. His parole was revoked from 15 January 2018, the date he was arrested. He served the balance of parole of five months and 17 days which expired on 1 July last year. 56. I have a discretion as to when to commence the sentence. The Crown says it should be at the end of his balance of parole. On behalf of Mr Tighe, Mr Rees submits it should be on the date of his arrest. 57. Because the parole was revoked partly because of these further offences, I have decided to commence this sentence three months after the day of his arrest on 15 April 2018, 58. I will sentence Mr Tighe by way of an aggregate sentence which will involve some partial accumulation for different offences against different victims - the two break and enter offences - even though there was a short period of offending. 59. For his pleas of guilty in the Local Court I have discounted the indicative sentences by 25%. 60. I am required to indicate the sentences I would have imposed for each individual offence if I was not imposing an aggregate sentence. They are: For the offence in sequence 10 and taking into account the matters on the Form 1, two years imprisonment. 61. For the offence in sequence 5, 18 months imprisonment. 62. For the offence in sequence 11, 12 months imprisonment. 63. For the offence in sequence 12, nine months imprisonment. 64. The aggregate sentence will be three years, six months imprisonment. The non-parole period will be 18 months imprisonment. 65. Mr Tighe would you stand up please. I sentence you to a non‑parole period of 18 months imprisonment to date from 15 April 2018. It will expire on 14 October 2019, and an additional term of two years imprisonment.