R v Brandon Sharpley

OBJECTIVE SERIOUSNESS

1. In assessing the objective seriousness of these offences I have had regard to the guideline judgement in R v Ponfield (1999) 48 NSWLR 327. Although the Court of Criminal Appeal declined to specify a sentencing range in that case it did consider the seriousness of the offence of break enter and steal and identified a number of factors that if present enhanced the observed objective seriousness of such offences. I am not satisfied that any of those factors exist in the present case so as to aggravate the objective seriousness of the offences. I will in due course deal with the fact the offender was on conditional liberty.
2. These offences did not involve, in my view, a level of planning that would be sufficient to amount to a planned or organised criminal activity as prescribed by s 21A(2)(n) of the Crimes (Sentencing Procedure) Act.
3. With respect to the first offence of break enter and steal the evidence before me is that this offender, together with his cousin were walking past the shop at a time when they were intoxicated and decided impulsively to kick in the door, enter the shop and steal some soft drink. I repeat they made no attempt to conceal their identity. There is no evidence before me to suggest any level of planning beyond that inherent in the commission of the offence and I accept that it was impulsive conduct on this offender's part.
4. The offender decided to return to the shop with his cousin and two others about one hour after the first offence. I accept that there was a degree of deliberation involved in making the decision to return for a second time to steal further soft drink. To this extent the second offence is slightly more objectively serious than the first, however, I am not satisfied that the second offence involved any level of planning or organisation sufficient to amount to an aggravating factor.
5. On the second occasion the offender returned to the shop with his co-offenders and re-entered the storeroom to take more soft drink or Powerade. Once again there was no attempt to disguise himself or conceal his identity in anyway. There is nothing that points to any degree of sophistication or organisation with respect to the commission of the second offence. I am not satisfied that the offence was accompanied by any degree of vandalism, although there was some damage it was not significant.
6. Although each offence related to an incursion on the same premises I must be careful not to treat this as an aggravating factor in circumstances where the Crown has charged two distinct offences for each entry into the premises. I am not of the view that in these circumstances the aggravating factor identified in Ponfield as repeat incursions operates to enhance the objective seriousness of the offences.
7. The property stolen amounted to $18 worth of Lift soft drink and four boxes of Powerade valued at approximately $40 each box. In Hejazi v The Queen [2009] NSWCCA 282 the Court held that financial gain is not necessarily an inherent element of an offence of break enter and steal citing as an example offences where the break enter and steal is affected to steal items of sentimental value. In the present case the value of the items stolen was very low. The offences involved young men stealing soft drink. There is no evidence that they intended to make a profit by selling the items. All the evidence points to an opportunistic theft to obtain soft drink to be consumed by the offenders. I am not satisfied that the motivation involved is such as to increase the moral culpability of this offender.
8. Having considered the factors identified in the guideline judgment and the matters relating to s 21A I find that the first offence falls at the very bottom of the range of objective seriousness and the second offence is also at the bottom of the range, although slightly more objectively seriousness by virtue of a degree of deliberation that must have necessarily been involved in going back to the same shop on the second occasion.
9. I have taken into account that both offences are aggravated by the fact that I have been informed, and it is accepted, that the offender was on conditional liberty, being on bail for an offence of assault occasioning actual bodily harm that I have been informed was subsequently dismissed.

SUBJECTIVE CASE

1. Earlier in these remarks I referred to the evidence of Mr Trindall on the last occasion the matter was before me. He has been employed as a field officer with the Aboriginal Legal Service since 2006. He is based in Walgett and has lived in that community for approximately 35 years. In 1998 he was employed with the New South Wales Police Service as a community liaison officer. In that capacity he witnesses first-hand the extent of the devastating effect of alcohol abuse and violence on members of his community.
2. In 2004 he left the police force to manage property for the Aboriginal Land Council. He was also the chairperson of the Walgett Community Working Group and was able to confirm the finding of the Walgett Gamilaroi Working Community in 2005 identifying the following main issues facing the community: 1. Racism and stereotyping of Aboriginal people. 2. Inequality and lack of opportunity. 3. Lack of resources and poor living conditions. 4. Welfare mentality. 5. Difficulty in accessing services. 6. Low levels of literacy and numeracy throughout the community. 7. Low student retention and achievement rates and high rates of truancy with the education system and unacceptably high levels of criminal activity and anti-social behaviour.
3. There is little before me to suggest that these problems are showing any signs of abating. Mr Trindall gave evidence before me on the last occasion that he had long-standing and first-hand experience of the problems and difficulties faced by the community in Walgett, both in his personal capacity and his professional capacity. He identified severe social deprivation including domestic violence, violence generally, substance abuse, unemployment and significant levels of illiteracy, particularly amongst the young. He gave evidence on the last occasion that in the course of his employment as a field officer for the Aboriginal Legal Service he had come across a number of young Aboriginal people who were unable to spell their surnames.
4. I repeat the remarks that I made when sentencing Brett Sharpley. This level of illiteracy in twenty first century Australia, a first world country, is a cause of considerable concern and provides further insight into the entranced disadvantages inherent in some Aboriginal communities.
5. The level of substance abuse and violence coupled with the lack of opportunity gives rise to a sense of hopelessness and disempowerment amongst some members of the local community that cannot be ignored when assessing the moral culpability in the individual's case. This offender's history of deprivation and exposure to alcohol abuse, violence and the lack of opportunity to thrive in such an environment is intrinsically connected to his current predicament.
6. With specific reference to this offender, Mr Trindall was asked about whether he was aware of what his upbringing was like. He responded, "Well I know that there was a lot more domestic violence in Brandon's life than what there was in Brett's. Brett had a fair bit of domestic violence, he had a fair bit of alcohol but in Brandon's life, because as I go back to being with police, I don't know how many times I've called at their house in domestic relationship. Brandon's father has been in four different relationships, I think he's got children to four different women."
7. Mr Trindall was asked about the housing conditions and he responded, "The housing conditions, well Brandon was lucky because when Lisa and Brandon's dad and that grew up they lived in tin shacks on Namoi and, but the housing conditions are not that bad. They've got pretty fair houses over there, stilt, up on 10 feet stilts above the ground because the flood waters go through there and they're pretty modern houses."
8. He was asked about his experience in dealing with the Sharpley family, particularly on Brandon's side, particularly when he was working with the New South Wales Police as to the care that was being shown to the children and he responded: "It's always been the same. When there's no grog around the care is 110%. Now I've lived at Namoi Village in the tin shacks when me and my wife first got married and Friday afternoon it was nothing to see 10, 15, 20 kids coming to our house and sleep on a dirt floor because of the alcohol that was around the rest of the community. And well there was no alcohol in our house so they'd all come to our house and sleep. So it's you know, it hasn't changed, it's still the same today."
9. The offender gave evidence before me today. He is 19 years old and he confirmed that he grew up in Namoi Village, Walgett. His parents separated when he was either five or six years old. The separation was a result of domestic violence in the home which he witnessed. His mother moved to Bathurst and he did not see her again until he was about 13.
10. He gave evidence that he got on well with his father except when his father was intoxicated. He told me during his evidence that when his father drank he did so to excess and did shameful things that made the offender ashamed.
11. The offender gave evidence that he experienced learning difficulties at school and is barely literate. He left school halfway through year 10 and has had very little by way of employment since. His interests are football and fishing and he has a strong attachment to his siblings, intending to reside with his older brother, Damien, in Bathurst on his release. He gave evidence before me that he is motivated to do so in order to look after his younger brother who also resides there.
12. On the day of the offence he commenced consuming rum in the afternoon and continued drinking all day. He was intoxicated at the time he committed the offences. With respect to the first offence he gave evidence that he and his cousin, Brett, were walking past the shop when they decided to break in. It was completely unplanned and at the time he thought it was a bit of fun. He confirmed that they decided to go back to the shop on the second occasion to get more drinks.
13. He expressed remorse whilst giving evidence and acknowledged that the owners must have been devastated when they realised the shop had been broken into. He gave evidence before me that he wanted to do all he could to prevent going back into gaol, including going to TAFE, learning to read and write and obtaining work in the construction industry. I accept he is remorseful and has developed insight into his offending behaviour.
14. The offender was on conditional liberty at the time of these offences. I repeat he was on bail for an offence of assault occasioning actual bodily harm that was subsequently dismissed. He has a number of matters on his record, in the main being dealt with in the Children's Court by way of probation or a bond.
15. There is one matter of a like nature which appears to have been dealt with in the Goondiwindi Magistrate's Court in 2012. However, I note that he was dealt with by way of no conviction being recorded, entering into a good behaviour recognisance and being ordered to pay restitution of some $59.
16. On 28 September 2014, having been taken back into custody as a result of the bench warrant that was issued for his non-attendance in Coonamble, he was sentenced to one month imprisonment for an offence of malicious damage. On appeal the sentence was overturned and he was dealt with by way of dismissal pursuant to s 10A. The malicious damage involved the offender scratching his name and the Aboriginal flag onto a Perspex wall at a police station.
17. Whilst he does have some matters on his record I am not of the view that he has a significant criminal history, such as to enliven the principles in Veen v The Queen (No. 2) (1988) 164 CLR 465.
18. I accept that the offender is remorseful for his actions. That remorse is reflected in his plea of guilty at the first opportunity, the fact that he made full and frank admissions to the police and cooperated with them. Indeed, it is noted in the agreed statement of facts that the police formed the view that he was remorseful.

PROSPECTS OF REHABILITATION

1. I am satisfied, having heard evidence from the offender, that his intentions are to remain out of trouble, educate himself and obtain employment. Unlike the case for his co-offender, I do not have any evidence of demonstrated rehabilitation. Brett Sharpley appeared before me having remained out of trouble and working for a period of some five months on a property. I do not have such evidence in the present case. Although I am unable to make any prediction about Brandon's prospects of rehabilitation with any certainty I am of the view that he would have reasonable prospects if he accepts the supervision of Probation and Parole, if he attends TAFE, learns to read and write and obtains employment.
2. The uncontested evidence before me is that the community from which the offender comes and in which he has been raised has experienced an appalling degree of deprivation over a long period of time. This offender is a product of that community and it is therefore necessary for me to assess his moral culpability, bearing in mind the particular socio-economic factors that exist in his community that have inevitably had an impact upon him. Failure to do so would be a failure to fulfil the principle of individualised justice.
3. Some of these remarks I made when sentencing Brett Sharpley. It is important that I repeat them. To be clear, taking into account the background of severe deprivation, I do not act upon a kind of racial stereotyping which diminishes the dignity of individual offenders by consigning them by reason of their race and place of residence to a category of persons who are less capable than others of decent behaviour. Instead I am applying the fundamental principle of equal justice requiring as it does differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law.
4. The evidence relating to the deprived background of the offender and the poor conditions that have plagued his community is necessary contextual evidence to properly access the moral culpability of the offender and the competing purposes of punishment as set out in s 3A of the Crimes (Sentencing Procedure) Act.
5. In the decision of R v Millwood [2012] NSWCCA 2 Justice Simpson explained the relevance of evidence of an offender's background of deprivation. She said at [69]: "I am not prepared to accept that an offender who has had the starting life the respondent had bears equal moral responsibility with one who has had what might be termed a normal or advantaged upbringing. Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his or her behavioural decisions.. I should not be taken as implying that such a person bears no moral responsibility, but I consider that the DPP's submission significantly underestimates the impact of a dysfunctional childhood. Indeed, it sits uneasily with the immediately preceding acknowledgement that his upbringing has been tragic and dysfunctional. That his background is relevant consideration affording some of a limited mitigation is entirely consistent with the approach taken by Justice Wood in Fernando, a decision which has repeatedly been followed in this Court. If that were not so there would be no purpose in sentencing courts receiving, as they invariably do, evidence concerning the personal background of offenders."
6. In Bugmy v The Queen [2013] HCA 37, the Court sided with approval the observations of Justice Simpson in Kennedy v The Queen [2010] NSWCCA 260: "An Aboriginal offender's deprived background may mitigate the sentence that would otherwise be appropriate for the offence in the same way that the deprived background of a non-Aboriginal offender may mitigate the sentence."
7. In this respect Simpson J has correctly explained the significance of the statements in R v Fernando (1992) 76 A Crim R 58 at [53]: "Properly understood Fernando is a decision not about sentencing Aboriginals but about the recognition in sentencing decisions of social disadvantage that frequently, no matter what the ethnicity of the offender precedes the commission of an offence."
8. The propositions stated in Fernando are largely directed to the significance of the circumstances that the offender was intoxicated at the time of the offence. As Justice Wood stated, drunkenness does not usually operate by way of excuse or to mitigate an offender's conduct. However, his Honour recognised that there are Aboriginal communities in which alcohol abuse and alcohol related violence go hand in hand. His Honour considered that where an offender's abuse of alcohol is a reflection of the environment in which he or she was raised it should be taken into account as a mitigating factor. To do so, he said is to acknowledge: "the endemic presence of alcohol in Aboriginal communities and the grave social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them."
9. In Bugmy the Court noted that, "Of course not all Aboriginal offenders come from backgrounds characterised by abuse of alcohol and alcohol fuelled violence. However Justice Wood was right to recognise the problems are endemic in some Aboriginal communities and the reasons which tend to perpetuate them. The circumstances in which an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way."
10. In any case where it is sought to rely on an offender's background of deprivation in mitigation of sentence it is necessary to point to the material tending to establish that background. In the present case that background material has been placed before me and it is not disputed by the Crown.
11. Prolonged and widespread social disadvantage has produced a community so demoralised and alienated that many within it, like this offender, have succumbed to alcohol abuse, criminal misconduct and a sense of hopelessness. That background of disadvantage and of deprivation may impact upon the individual so deeply and so broadly that it serves to shed light on matters such as, for example, the offender's recidivism.
12. In Bugmy the plurality held at paras [43] and [44]: "The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Amongst other things a background of that kind may compromise the person's capacity to mature and learn from experience. It is a feature of the person's makeup and remains relevant to the determination of the appropriate sentence, notwithstanding that the offender has a long history of offending. Because of the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending it is right to speak of giving full weight to an offender's deprived background in every sentencing decision. However, this is not to suggest that an offender's deprived background has the same migratory relevance for all purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult."
13. The Court also stated that, "The offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated" and again repeated that it is relevant to the offender's moral culpability.
14. This offender has grown up with alcohol abuse being a normal part of his home life and also a devastating and entrenched problem in his peer group and his community. He committed these offences whilst affected by alcohol. The offender's self-induced intoxication is not normally to be taken into account as a mitigating factor. However, the evidence before me demonstrates that he has experienced a deprived upbringing, including exposure to significant alcohol abuse and domestic violence resulting in a dysfunctional family environment and a significant degree of disadvantage. I am satisfied that his background of deprivation operates to reduce his moral culpability and thereby mitigate the sentence.
15. In addition to this offender's background of deprivation I have also had regard to his relative youth and immaturity at the time the offences were committed. His immaturity is perhaps best illustrated by his response when asked about the reasons for committing the offence. That it was, "Just for the fun of it."
16. The principles relevant to sentencing juvenile offenders were summarised in KT v R [2008] NSWCCA 51. McClellan Chief Justice at Common Law, as he then was, observed at [23]: "The law recognises the potential for the cognitive, emotional and or psychological maturity of a young person to contribute to their breach of the law. Accordingly allowance will be made for an offender's youth and not just their biological age. Although the extent to which leniency is extended to an offender by reason of youth maybe less where an offender is close to 18 years of age or has engaged in adult behaviour."
17. The remarks of Justice Hodgson in the decision of BP v R [2010] NSWCCA 159 are apposite: "While I agree the weight to be given to considerations relevant to youth diminish the closer the offender approaches the age of maturity. It does not follow that the age of maturity is 18. In my understanding emotional maturity and impulse control develop progressively during adolescence and early adulthood and may not fully be developed until the early to mid-twenties."
18. I have also had regard to the decision of Locke v R [2010] NSWCCA 296 where the Court considered the issue of youth. Considerations of general deterrence, while they may be significant, do not justify disregarding or discounting an offender's youth and immaturity.
19. Although the offender had reached the age of 18, he is relatively speaking a young man whose emotional maturity and impulse control was not fully developed in my view. I am satisfied that in this case his relative youth is a factor that I should take into account in giving greater emphasis to rehabilitation at the expense of specific and general deterrence. That is not to say that general and specific deterrence are of no significance in the present case. They must be given some weight in the sentence to be imposed. However, I am not of the view that deterrence must be given determinative weight in assessing the appropriate sentences in this case. Punishment and denunciation are also relevant, but the impact of these considerations on my sentencing discretion is moderated in light of my finding that in this case there is a greater need to promote and give greater prominence to the rehabilitation of this young and emotionally immature offender.
20. His rehabilitation is also relevant to the protection of the community. In R v Blackman and Walters [2001] NSWCCA 121 the Court of Criminal Appeal dismissed a Crown appeal against the suspension of sentence for a serious armed robbery. During the course of judgment the Court sided with approval remarks made in a decision of Yardley and Betts (1979) 22 SASR 108. "The protection of the community is also contributed to by the successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of and it assumes particular importance in the case of first offenders and others who have not developed settled criminal habits. If a sentence had the effect of turning an offender towards a criminal way of life the protection of the community is to that extent impaired. If the sentence induces or assists an offender to avoid offending in the future the protection of the community is to that extent enhanced. To say that the criminal law exists for the protection of the community is not to say that severity is to be regarded as a sentencing norm."

PARITY

1. I find that the role of this offender in the commission of both offences is virtually identical to the involvement of his adult co-offender, Brett Sharply. Their background of deprivation is very similar, although I note the evidence of Mr Trindall that the circumstances of disadvantage were even more severe in the case of this offender.
2. There is some difference in the criminal history. Brett Sharply did not have a matter of a like nature on his record, whereas this offender was dealt with in the Goondiwindi Local Court for a like matter, although as noted earlier in these remarks he was dealt with by way of no conviction. Both were on conditional liberty at the time of the commission of the offences. There is no relevant distinction between this offender and Brett Sharpley and their involvement in the offences. I am also of the view that their subjective circumstances are largely similar. The objectives of consistency and equality before the law require the treatment of like cases alike. I find that the principle of parity applies in the present case.

PRESENTENCE CUSTODY

1. The offender was in custody from 5 February 2014 to 18 March 2014, a period of one month and 13 days. During this period he was also in custody with respect to an offence of assault occasioning bodily harm that was subsequently dismissed. He was released on bail on 18 March 2014. He was arrested on 27 September 2014 on a bench warrant that was issued as a result of his failure to appear before me at Coonamble District Court. He has remained in custody since that date. I have been informed that during this later period he served a sentence of one month for malicious damage, which was subsequently overturned on appeal. This is the matter for which he was dealt with in the District Court by way of a s 10A dismissal.
2. In total he has spent three months and 14 days in custody. Whilst it is true that periods at this time were also referable to other offences, one of those offences was subsequently dismissed and the other, in my view, should never have attracted a period of imprisonment. I will therefore take in account a period of three months in custody when determining the appropriate penalty in this case. I have turned my mind to s 5 of the Crimes (Sentencing Procedure) Act which mandates imprisonment as a last resort. I am not satisfied that in the circumstances of this case no penalty other than a term of imprisonment is appropriate. I make that finding for the following reasons: 1. The objective seriousness of both offences is at the low range for the reasons set out above. 2. The offender's background of profound social deprivation operates to reduce his moral culpability and to moderate the weight that is to be given to general deterrence. 3. The offender pleaded guilty at the first opportunity and cooperated fully with the police. 4. In light of the offender's youth and relative immaturity I accept that rehabilitation plays a more prominent role than the other purposes of punishment.
3. With respect to this last consideration it is necessary to set out in brief the remarks of Mahoney ACJ in R v Lattouf (Court of Criminal Appeal (NSW), 12 December 1996, unrep). His Honour stated: "It is my opinion necessary that the law allows the sentencing judge discretion to determine the sentence appropriate for a particular offence, for the particular offender and for the circumstances of the particular case. General principles must, of their nature, be adjusted to the individual case if justice is to be achieved. Paramount amongst these is the achievement in the individual case. To see the sentencing processes involving no more than a stern punishment for each offender is not merely simplistic it damages the public interest. The sentencing process which is seen by the public merely as draconian and not just will lose the support of those whom it is designed to protect. If the sentencing process does not achieve justice it should be put aside. If justice is not individual it is nothing. But in addition a sentencing process must be capable of discriminating between cases. There is, as I have said, a public interest in punishment. But if the desire to punish results in a person who would otherwise not become a confirmed criminal becoming such that sentencing process is inconsistent with the public interest. It is to be recognised that imprisonment may convert a person who will not be a persistent criminal into one who is."
4. Having taken into account his plea of guilty and having given regard to the objective and subjective matters as outlined above I am satisfied that this offender can be dealt with by way other than terms of imprisonment.
5. Accordingly, Mr Sharpley if you can stand up please? With respect to the first count of aggravated break enter and steal pursuant to s 9 of the Crimes (Sentencing Procedure) Act the offender is sentenced to a good behaviour bond for a period of two years commencing today, 28 November 2014 and subject to the following conditions: 1. To be of good behaviour; 2. To appear before the Court if called upon to do so at any time in respect of this bond; 3. To accept the supervision of Community Corrections and to report to the Bathurst office of Community Corrections within seven days.
6. With respect to the second count of aggravated break enter and steal pursuant to s 86 of the Crimes (Sentencing Procedure) Act I order the offender to perform a total of 100 hours community service work. The offender is to report to the Bathurst office of the Community Corrections within seven days to enable the administration of the order to commence.

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: 20 January 2015