R v Brett SHARPLEY

SENTENCE 1HER HONOUR: Brett Sharpley is a 19 year old Aboriginal man whose family have always resided at Namoi Mission in Walgett. The uncontested evidence before me is that the community from which the offender comes and in which he has been raised bears the scars of decades of neglect and deprivation. 2He is a product of that community and it is therefore necessary that I consider the various purposes of sentencing and assess his level of moral culpability bearing in mind those socio-economic factors. Failure to do so would be a failure to fulfil the principle of individualised justice. 3The Namoi Mission is one of two Aboriginal communities located close to Walgett. It is situated about 3 kilometres north of Walgett. The second community is Gingie Mission which is situated about 10 kilometres west of Walgett. Both communities are home to up to 100 indigenous families in total. Reserves were established under the Aboriginal Protection Act, both in and out of New South Wales towns as early as the 1880s. Namoi Reserve was established in 1952. 4The Aboriginal people living at Walgett now are mainly Gamilaraay, Yuwaalaraay and Ngiyambaa people, descendants of the traditional owners of those lands. Many of them were forced by the government to leave their country and live in missions and reserves elsewhere. However they kept coming back to live in Walgett. Even in the 1960s Aboriginal people could not enter Walgett after 6pm. 5This material has been placed before me in written submissions on behalf of the offender and is not in dispute. The Walgett Gamilaraay Community Working Party in 2005 identified the following main issues facing their community:

• Racism and stereotyping of Aboriginal people.
• Inequality and lack of opportunity.
• Lack of resources and poor living conditions.
• Welfare mentality.
• Difficulty in accessing services.
• Low levels of literacy and numeracy throughout the community.
• Low student retention and achievement rates and high rates of truancy within the education system and unacceptably high levels of criminal activity and antisocial behaviour. 6There is nothing to suggest that these issues are showing any signs of abating. The uncontested evidence given by Gary Trindall in these sentence proceedings is as follows. 7Mr Trindall has been employed as a field officer for 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 witnessed firsthand the extent of the devastating effect of alcohol abuse and violence on members of his community. 8In 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 findings of the Walgett Gamilaraay Community Working Party to which reference has been made in written and oral submissions on behalf of the offender. 9Mr Trindall has had long-standing and first-hand experience of the problems and difficulties facing the community in Walgett in both a personal and professional capacity. He identified severe social deprivation including domestic violence, violence generally, substance abuse, unemployment and a high incidence of break enter and steal offences. 10He also identified significant levels of illiteracy particularly in the younger generation. In the course of his employment he has come across a number of young Aboriginal people who are unable to spell their surnames. This level of illiteracy in 21st century Australia is a cause of considerable concern and provides a further insight into the entrenched disadvantages inherent in the Walgett community. 11Mr Trindall gave evidence that alcoholism ran rampant on the Namoi Mission. It seems that his house was the only alcohol-free zone. He described occasions where young people sought refuge at his home knowing that it was alcohol-free. Come Friday nights, he experienced up to six or seven children seeking the sanctuary of the dirt floor in his home. He described eloquently the entrenched social and economic deprivation faced by members of the Namoi community. 12With specific reference to this offender he gave evidence that he has known the offender and his family for a number of years. The offender's parents are both alcoholics. The offender's father was described as being a good man when not drinking but when drinking becomes aggressive and it brings out the worst in him. 13The offender grew up in an environment of violence and alcohol abuse in a community with little opportunity for advancement, economic independence or access to services. Not only did the offender grow up witnessing his parents' alcohol abuse and regular violent incidents in his home, he also witnessed it in his wider community. 14The Juvenile Justice Report which is exhibit 2 in these proceedings sets out the following relevant factors with respect to the offender. He has lived an unpredictable and transient lifestyle, void of adult supervision and guidance. His literacy and numeracy levels are poor, placing him in a vulnerable situation in the community. He was expelled from Walgett Community College in 2008 and has no subsequent schooling. In 2007 there were 81 unexplained absences in semester 2 out of approximately 100 days. There is a record of suspensions and persistent disobedience and he expressed a real passion for fishing and rugby league. 15The pre-sentence report documents a disclosure of a history of substance abuse including commencing drinking alcohol at the age of 13 and cannabis at 16. His substance abuse continued throughout his teenage years and up until the time of these offences. It is against this background of profound social and economic deprivation that I must assess his moral culpability and apportion weight to the various purposes of sentencing. It is against this background that I must sentence him for breaking into the Gourmet Food Takeaway Shop in Walgett on two occasions separated in time by one hour in the early hours of 11 December 2013 and stealing a quantity of soft drink. 16The offender pleaded guilty in the Walgett Local Court to two counts of aggravated break enter and steal contrary to s 112(2) of the Crimes Act. Each offence carries a maximum sentence of 20 years with a standard non-parole period of five years. Those two legislative guide posts indicate that offences of this type are normally considered as very serious criminal conduct requiring significant weight to be given to general and specific deterrence. 17For the reasons set out below I am satisfied that the offences committed by this offender are at the very low range of objective seriousness. I am also not satisfied for the reasons set out below that having considered all possible alternatives that no penalty other than imprisonment is appropriate. 18At the time of the offences the offender was aged 18. At about 12.40am on 11 December 2013 this offender together with his cousin Brandon Sharpley broke into the Gourmet Food Takeaway Shop in Walgett by kicking the door of the storage room. They took a carton of 24 cans of Lift soft drink valued at $18. Their attendance on that occasion was captured by CCTV. 19About an hour later at 1.40am the two offenders returned with juveniles MH and JT. This offender was carrying a torch. He opened the door to the storeroom and entered together with the three co-offenders. None of the males had their faces covered. They were in the storage room for about five minutes. They left, each taking a carton of Powerade drinks valued at about $40 each. 20Upon discovering the damage to the door and the stock missing the police were called. Police attended on 12 December 2013 and watched the CCTV footage. They identified this offender and suspected that the second offender to be Brandon Sharpley. A search warrant was executed at the offender's home. They found clothing consistent with that worn by him and seen on the CCTV footage. The police also found a Powerade box. A dog depicted in the CCTV footage at the time of the first break enter and steal was at the offender's home. 21On 18 December 2013 the offender attended the police station at Walgett. He participated in a record of interview. He nominated MH and JT as the persons involved in the second offence and he confirmed the police suspicions with respect to the involvement of Brandon Sharpley. He declined to make a statement implicating his co-offenders and indicated that he would not give evidence against them. However he did provide some assistance to the police by way of identifying the two juvenile co-offenders and confirming the identity of the adult co-offender. 22The offender has given evidence before me acknowledging his role in the offences. He gave evidence which I accept that on the day in question he had commenced drinking at 10am. He was drinking Bundaberg rum which he mixed with Coca Cola. He was well affected by alcohol at the time of the commission of the offences.