R v Brett SHARPLEY

Objective Seriousness 23I have had regard to the guideline judgment in R v Ponfield & Ors (1999) 48 NSWLR 327. Although the Court declined to specify a sentencing range, it considered the seriousness of the offence of break enter and steal offences, contrary to s 112(1) of the Crimes Act and identified a number of factors that if present, enhanced the objective seriousness of such an offence. Those factors also apply to offences contrary to s 112(2). 24The offender was on conditional liberty at the time of the commission of the subject offences. I accept that that fact is an aggravating factor pursuant to s 21A(2)(j) of the Crimes (Sentencing Procedure) Act. I will return to that subject in due course. 25Other factors identified in the guideline judgment are not relevant to the present case. In this case I find that there was no planning or organisation that went beyond that inherent in the commission of each offence. Although there was a period of about an hour between the first offence and the second offence where the offender returned home and decided to go back to the shop to take further soft drink, I am not satisfied that there was anything particularly planned or organised about that conduct such as to aggravate the object seriousness of the offence. 26Whilst the offender has a criminal history he does not have matters of like offences. The offences were not accompanied by vandalism or any significant damage to property. There is not a multiplicity of offences that would require a more severe penalty than otherwise appropriate and the value of the stolen property is not significant. 27I find that the objective seriousness of the first offence is at the very lowest end of the range of objective seriousness particularly considering the range of offending behaviour contemplated by this offence. The Crown conceded it was at the low end of objective seriousness. I also find that the second offence is at the lower end of the range of objective seriousness. 28With respect to the second offence I am satisfied that there was some limited deliberation on the part of this offender in making the decision to go back to the same shop and take further property. To that extent the second offence is slightly more objectively serious. However, I have also taken into account the fact that both offences were committed within a relatively short period of time and with respect to the second offence there was no planning or sophisticated organisation involved. Whatever deliberation was involved in deciding to go back to the shop was not well considered or sophisticated, having regard to his level of intoxication. 29I note that on the second occasion the offender attended the premises in company of two juveniles. He was the adult and inferentially more mature than the two juvenile co-offenders. However he was relatively quite young himself. I am not satisfied that he enlisted their assistance or applied pressure upon them to become involved. I accept his evidence that the two juveniles "just came along" and he did not feel that he could do anything to stop them. 30During the course of submissions the Crown provided the Court with a copy of the decision in R v Clifford [2008] NSWCCA 190. It was a successful Crown appeal against a manifest inadequacy of sentence. However that case is very different from the objective and subjective factors involved here. In Clifford the offender was dealt with in respect of three offences contrary to s 112(1), s 113(1) and s 154AA(1) of the Crimes Act. 31In dealing with him, the sentencing judge took into account 14 break enter and steal offences on a Form 1. The respondent in that case had a prior record of like offences and had been dealt with by way of terms of full-time imprisonment in the past. His criminal history was described as "reasonably lengthy". The offender in that case was aged 46 years old at the time of the sentence and the primary motivation for the commission of the offences was to find cash to replace money he had used to buy cannabis. 32A number of factors identified in Ponfield were present including professional planning, organisation and execution and the total amount of property stolen in that case ran into the thousands of dollars. That decision is of little assistance to the present sentencing exercise. The present case is not one where a large number of factors of aggravation are present or where the accumulative effect of those factors enhances the seriousness of the primary offences. 33In the present case, as conceded by the Crown there is one aggravating factor being the offender was on conditional liberty. The offender was on a bond imposed at the Walgett Children's Court pursuant to s 33(1)(b) for a period of 18 months. At the time of the commission of these offences he was about six weeks shy of completing that bond. The offence for which he received the Children's Court bond involved an assault upon his father. The offender was 17 years old when his father who had been drinking alcohol all day returned to the home and continued to drink with friends. 34The victim started harassing his son and the latter unable to control his emotions struck his father with a pole once to the side of the body. When spoken to by police, the offender said that his father was heavily intoxicated and was harassing him for money and was "swearing and tormenting me". 35Although the offender was on a bond at the time of these offences, it was not for a matter of a like kind. It was a serious assault upon his father but I accept that it was in the context of his father being well affected by alcohol and harassing or tormenting the offender. 36Mr Trindall has given evidence before me that the offender's father, whilst a decent man when not drinking becomes aggressive and argumentative when drunk. He gave evidence that alcohol brings out the worst in the offender's father. 37Accordingly I am satisfied that the fact that the offender was on a bond at the time does not greatly aggravate the offences for which he is being sentenced. Each offence carries a standard non-parole period of five years imprisonment. The High Court in Muldrock v The Queen [2011] HCA 39 stated that the standard non-parole period is only one aspect of the larger task of sentencing. It should not be the starting point or the end point in arriving at a sentence. Indeed I am required to identify all the factors that are relevant to sentencing. In doing so I have had regard to the two legislative guideposts, the maximum sentence and the standard non-parole period. 38The High Court also affirmed that the broad-ranging and flexible enquiry envisaged by s 21A and confirmed in Markarian v R [2006] HCA 25 was not subject to a procedural straight jacket in respect of particular offences by the introduction of the standard non-parole period provisions.

Fernando and Bugmy Principles 39The evidence relating the offender's community and his subjective circumstances within it have been summarised above. No issue is taken by the Crown that the principles enunciated in Fernando and Bugmy apply in this case. It is appropriate that I set out in summary form some of the relevant principles. 40In R v Fernando (1992) 76 A Crim R 52, Justice Wood identified a number of principles relevant to the sentencing of Aboriginal offenders. They are well known principles and it is not necessary to set them out in full in this judgment. Essentially his Honour confirmed and explained principles pertaining to an offender's Aboriginality. In particular he held, "the relevance of Aboriginality is not necessarily to mitigate punishment but rather to explain or throw light on the particular offence and the circumstances of the offender". 41Justice Wood held that where the circumstances of an offender include abuse of alcohol reflecting the socio-economic circumstances and environment in which an offender has grown up, there needed to be: "a realistic recognition by the Court of the endemic presence of alcohol within 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." 42Justice Wood held that whilst primary Courts must not lose sight of the objective seriousness of an offence, full weight must be given to the competing public interest in rehabilitation of the offender and the avoidance of recidivism on his part. 43This context of the individual is necessary in order for the Court to properly assess the moral culpability of the offender and the competing purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act. In the High Court decision of Bugmy v The Queen [2013] HCA, the High Court endorsed the Fernando principles and held: "the propositions stated in Fernando are largely directed to the significance of the circumstances that the offender was intoxicated at the time of the commission of the offence." 44As Justice Wood explained, drunkenness does not usually operate by way of excuse or to mitigate the 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 when 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 reinforcing the resort to alcohol and compounding its worse effects." 45The High Court, in Bugmy, also noted: "Of course, not all Aboriginal offenders come from backgrounds characterised by the abuse of alcohol and alcohol-fuelled violence. However Wood J was right to recognise both of those problems are endemic in some Aboriginal communities and the reasons which tend to perpetual 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." 46In any case where it is sought to rely on the 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 has been established by evidence as summarised above. I repeat, the Crown does not dispute that the evidence establishes a background of profound deprivation in this case. 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 misbehaviour and a sense of hopelessness. 47Recognising the history of profound deprivation and giving it weight as a mitigating factor is not intended to suggest that the Court is acting 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. 48Instead it is relevant to the consideration of the relationship of these background matters to the assessment of the particular offender's moral culpability and proper consideration of the principles of proportionality and equal justice. 49Justice Simpson explained the relevance of a difficult upbringing in the decision of R v Millwood [2012] NSWCCA 2. At para 69 she stated: "I am not prepared to accept that an offender who has the start in life that the respondent had is equal in moral responsibility with one who has, what might be termed a normal or advantage upbringing. Common sense and common humanity dictate that such a person will have few 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 submissions significantly underestimates the impact of a dysfunctional childhood. Indeed it sits uneasily with the immediately preceding acknowledgment that his upbringing had been tragic and dysfunctional. That his background is a relevant consideration affording some, although limited mitigation, is entirely consistent with the approach taken by Wood J 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." 50The High Court in Munda v Western Australia [2013] HCA 38 considered the Fernando principles in the context of an offence of manslaughter where the offender had killed his partner. The High Court in that case emphasised the role of the criminal law to vindicate the dignity of each victim of violence, to express the community's disapproval of that offending and to afford such protections as can be afforded by the State to the vulnerable against repetition of violence. 51In the course of that decision [in paras 51 to 59] the plurality referred to the Victorian decision of Fuller-Cus v The Queen (2002) 6 VR 496 where it was observed that in the application of the principles stated by Brennan J in Neal (1982) 149 CLR 305, regard to an offender's Aboriginality serves to ensure that a factor relevant to sentencing which arises from the offender's Aboriginality is not overlooked by simplistic assumption that equal treatment of offenders means the differences in their individual circumstances related to their race should be ignored. 52Moreover the personal disadvantages affecting an individual offender may be because of the circumstances in which they were engendered so deep and so broad that they served to shed light on matters such as, for example, the offender's recidivism. In Bugmy the plurality held: "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 to 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 person has a long history of offending. Because 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 mitigatory relevance for all purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated, such that the offender's moral culpability or the inability to control that impulse may be substantially reduced. However the inability to control the violent response to frustration may increase the importance of protecting the community from the offender." 53I am satisfied that the history of socioeconomic deprivation in the community from which the offender comes and the impact that that has had upon him reduces his moral culpability. Notwithstanding the fact that these are not offences of violence, the offender's deprived background and his exposure over the years to violence and alcohol abuse is relevant to his capacity to mature and his capacity to appreciate the wrongfulness and consequences of his behaviour. 54I am also satisfied that the offender's intoxication is relevant in the way referred to by Justice Wood in Fernando and adopted by the majority in Bugmy at para 38. Whilst this case does not involve offences of violence I am satisfied that the offender's intoxication is a relevant matter in assessing his moral culpability and is reflecting the heightened need for rehabilitation of the offender. 55He has grown up with alcohol abuse being, not only a normal part of his home life, but also a devastating and entrenched problem in his peer group and community. He is a young man who committed these offences whilst well affected by alcohol, having commenced drinking on the day in question at 10am. The offender's history of socio-economic deprivation is also relevant to consideration of the countervailing purposes of sentencing. 56The interplay of considerations relevant to sentencing may be complex and can be contradictory. In a given case, facts which point in one direction in relation to one consideration to be taken into account, may point in entirely different direction in relation to some other consideration. The social deprivation in the offender's youth, background and community is integrally related to his history of offending and considerations of questions of deterrence, rehabilitation and the protection of the community. 57In another decision of Fernando [2002] NSWCCA 28, Chief Justice Spigelman, as he then was, said: "It is, however, often the case that such considerations of deterrence are properly tempered by considerations of compassion which arise when the Court is presented with information about the personal life circumstances which have led an individual into a life of crime." 58Additional to compassion the offender's background of deprivation may moderate the weight to be given to general and specific deterrence. The majority in Bugmy stated at 46: "An issue for determination on the remitter is whether the appellant's background of profound childhood deprivation allowed the weight that would ordinarily be given to personal and general deterrence to be moderated in favour of other purposes of punishment including rehabilitation." 59Having regard to the evidence in this case with respect to the offender's background and the profound disadvantage that exists in his community, I am satisfied that general deterrence should be given less weight than would ordinarily apply in cases involving aggravated break enter and steal. 60The High Court has affirmed the existence of a wide arc of sentencing discretion requiring instinctive synthesis of all relevant factors. I must take into account a wide variety of matters that include the seriousness of the offences, the personal history and circumstances of the offender. As already noted there are competing and contradictory considerations in sentencing offenders. 61In the present case I am satisfied that significant weight should be given to the purpose of rehabilitation. In making this finding I do not give disproportionate weight to the offender's subjective circumstances. Instead I have had regard to the objective seriousness of the offences which I have determined to be at the lower end of the range, the absence of multiplicity of aggravating factors, the reduced moral culpability of the offender by reason of his profoundly deprived background and his relative youth. 62The offender was 18 years old when he committed the offences and is now 19. Although an adult, he is, relatively speaking, a very young man. His relative youth combined with his socio-economic deprivation points in my view to an emotional immaturity and a less than fully developed capacity to control impulse behaviour. 63In the case of BP v R [2010] NSWCCA 159 at [5], Hodgson JA observed that emotional maturity and impulse-control develop progressively during adolescents and early adulthood and may not be fully developed until the early to mid 20s. Youth may be a material factor in sentencing even a 19 year old for the most serious offence. 64The offender pleaded guilty at the first opportunity and is entitled to a 25% reduction for the utilitarian value of his plea. In addition to the plea of guilty I am satisfied that he is remorseful. He has given evidence before me and I accept that he is sorry for committing these offences. During his evidence he said that he hated stealing and explained that because he had a deep interest in working on properties he understood that the owners of those properties took a very dim view of thieves. His remorse is also evidenced by his willingness to make frank admissions when spoken to by the police, not only with respect to his own offending behaviour but in assisting the police by either identifying or confirming the identify of co-offenders. 65He declined to make a statement or give evidence against his co-offenders. However, his assistance in the way I have described is further evidence of his contrition and I will take it into account as a mitigating factor. I also take into account the fact that the offences were not part of a planned or organised criminal activity, that the injury, emotional harm, loss or damage caused by the offences was not substantial. 66During his evidence the offender described the joy and fulfilment he has experienced in the past five months since moving on to the Walma property, some 15 kilometres from Walgett. His uncle, Christopher Thompson also resides and works on the property. The offender has been residing and working on the property for the past five months. He comes into town rarely and for only brief periods. He no longer drinks in town and whilst he continues to drink alcohol on the property he is not in the company of his peer group with the adverse influence that that group had upon him. 67He has been on a curfew since about 18 December 2013 requiring him to be at Walma during the hours of 9pm to 6am. Whilst the bail conditions have not been so onerous as to constitute a period of quasi custody, the fact that he has been on curfew for a period of some nine months without bail being revoked is a matter that further demonstrates his determination to rehabilitate. 68I accept that he is at the cross roads. Furthermore I accept that he is genuine in his attempts to remain on the property, engaging in work that has provided him with a sense of fulfilment and hope for the future in circumstances where such opportunity is nowhere near plentiful. His work on the property includes fencing, irrigating, stick picking and mustering cattle. The offender states that his employer has been a good influence on him and wants him to continue there. Garry Trindall gave evidence that the offender is "a good kid" if he has the right guidance and remains working on the property. Mr Trindall added that the offender could be a good role model to other children. 69I am satisfied that the offender genuinely intends to continue living and working on the property and that he has developed an insight into the causes of his offending behaviour and the path down which such behaviour leads. I am of the view that he would benefit from a period of supervision particularly with respect to education about substance abuse. I find that he has good prospects of rehabilitation. 70Rehabilitation is a concept which is important in this sentencing exercise. In the case of Blackman v Waters [2001] NSWCCA 121 the Court of Criminal Appeal dismissed a Crown appeal against the suspension of the sentence for a serious armed robbery and the Court cited with approval Chief Justice King's remarks in Yardley v Bates (1979) 22 SASR 108 (at [44]): "The protection of the community is also contributed to by 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 in order 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 the sentencing norm." 71In Latouf (NSWCCA 12/12/1996) Mahoney ACJ said: "It is in my opinion necessary that the law allow 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 of justice in the individual case. To see the sentencing process as involving no more than 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 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." 72It is clear that the protection and advancement of the community is met by the successful rehabilitation of this offender in these circumstances, not only in discouraging him from further criminal activity but in enabling him to be a positive influence to his peers which he has the potential to be. 73On behalf of the Crown it was submitted that, particularly with respect to the second offence of aggravated break enter and steal, that no penalty other than a term of imprisonment is appropriate although the manner in which that term of imprisonment is to be served was a matter that was open in the circumstances of this case. 74Although the offences carry a maximum sentence of 20 years and a standard non-parole period of five years these legislative guide posts are only two factors of a complex set of considerations to which I must have regard in arriving at appropriate sentences, a task that necessarily involves a process of instinctive synthesis. 75Section 5 of the Crimes (Sentencing Procedure) Act 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 have so determined 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)In light of the offender's genuine remorse, his good prospects of rehabilitation and the absence of re-offending whilst on conditional bail, the weight to be given to specific deterrence is also reduced; (4)In light of the offender's youth, the fact that this is the first time that he appears as an adult before the Court and the evidence he has given before me which I accept, I am satisfied that the purpose of rehabilitation should be given significant weight in this case; and (5)The offender pleaded guilty at the first opportunity. He also assisted the police by identifying his co-offenders and confirming of the identity of a third co-offender. 76During the course of proceedings both parties have submitted that I should deal with the breach of the Children's Court bond. Mr Lawrence submitted that I had jurisdiction to deal with the breach pursuant to s 98 of the Crimes (Sentencing Procedure) Act 1999. Section 98(1)(c) states: "If it suspects that an offender may have failed to comply with any of the conditions of a good behaviour bond, with the offender's consent any other Court of superior jurisdiction can deal with the breach." 77He drew my attention to s 3 of the Act with respect to the definition of "Court" which excludes the Children's Court from that definition. He argued, however that s 94 of the Crimes (Sentencing Procedure) Act could be read as applying in the current circumstances where the Court is considering imposing a good behaviour bond. Furthermore he submitted that the offender consents to the Court dealing with the breach. 78I have given this matter a great deal of thought. I am not satisfied that I have jurisdiction to deal with the breach of the bond imposed pursuant to s 33(1)(b) of the Children's (Criminal Procedure) Act. I read s 98 as referring to a breach of a bond imposed in a Court other than the Children's Court. I have also had regard to pt 3 of the Children's (Criminal Procedure) Act and in particular s 41 which as I read it does not give the District Court jurisdiction to deal with a breach of a bond imposed by the Children's Court. 79Had I determined that I had jurisdiction I would have ordered that no action be taken for the breach. 80Accordingly with respect to each of the offences that are before me the offender is convicted. On the first charge 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, 12 September 2014 and subject to the following conditions: to be of good behaviour; to appear before the Court if called upon to do so at any time in respect of the bond; to be subject to whatever supervision is deemed necessary by Community Corrections; and to report to the Coonamble office of Community Corrections within seven days. 81On the second charge of aggravated break enter and steal pursuant to s 86 of Crimes (Sentencing Procedure) Act the offender is ordered to perform a total 100 hours of community service work and the offender is to report to the Coonamble office of Community Corrections within seven days to enable the administration of the order to commence. 82I think they are all the orders required. 83DAY: Thank you your Honour. Your Honour if I could just place on the record one thing. When Mr Brandon Sharpley eventually comes before your Honour I would just like to put it on the record that my written submissions were prepared before your Honour gave the judgment. 84HER HONOUR: Why is that Mr Day? 85DAY: Because there were substantial portions of your judgment your Honour that are, in fact, in my submissions so I just wanted to point that out that I didn't fashion my submissions on the basis of your Honour's judgment. 86HER HONOUR: You're not plagiarising then. 87DAY: That's correct your Honour. I just put that on the record. 88HER HONOUR: Well perhaps I should make an order that my remarks or a transcript of my remarks should be obtained and placed on the file. 89DAY: Thank you. 90MCIVOR: Yes your Honour and also for prudent caution just note that a - or a suitability assessment for community service was obtained as a second report and that report I believe is before the Court as suitable. 91HER HONOUR: You're quite right Ms McIvor and I think I have neglected to formally mark that report. 92MCIVOR: Yes your Honour. 93HER HONOUR: Thank you for reminding me of that. Yes I should place on the record that an assessment for a community service placement was suitable and it was contained in a report that was placed before me and which I will have marked as exhibit B in the proceedings. Thank you for that. 94EXHIBIT #B REPORT TENDERED, ADMITTED WITHOUT OBJECTION

Amendments 20 October 2014 - typographical error Amended paragraphs: 11 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 October 2014