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District Court 21 April 2006

R v Jason Wayne NICHOLAS

[2006] NSWDC 149

Theft & property
CRIMINAL LAW SENTENCE AGGRAVATED BREAK ENTER AND STEAL

Citation: R v Jason Wayne Nicholas [2006] NSWDC 149
Court: District Court of New South Wales
Date: 21 April 2006
Judge(s): Berman SC DCJ

Background

The offender pleaded guilty to three counts on the indictment: one charge of aggravated break, enter and steal (aggravated by the fact he was in company) and two charges of break, enter and steal. Several related matters were also listed on a Form 1 (a mechanism allowing further offences to be taken into account at sentencing without separate convictions). All offences were committed while the offender was on conditional liberty.

The offender suffers from schizophrenia. He had previously been found unfit to stand trial in relation to some of the same offences, but his condition had stabilised sufficiently for him to be found fit and to enter guilty pleas. Psychiatric evidence established that his mental illness was likely to have significantly impaired his perception, his capacity to distinguish right from wrong, and his ability to control his behaviour at the time the offences were committed.

At the sentencing hearing, the offender's counsel applied for a remand under section 11 of the Crimes (Sentencing Procedure) Act 1999, which allows a court to adjourn sentencing to assess an offender's rehabilitation prospects. The Crown initially opposed the application but, after hearing evidence including the offender's own testimony, withdrew its opposition.

  • Whether a section 11 remand was appropriate given the seriousness of the offences and the offender's criminal history
  • How the offender's mental illness bore on sentencing, including the principle from The Queen v De Simoni regarding facts that aggravate an offence beyond the charge as laid
  • Whether the offender's rehabilitation prospects were sufficiently established to justify deferring the imposition of a sentence

Decision

Berman SC DCJ noted that the circumstances of aggravation in the second offence (that the offender was also in company) had to be disregarded in sentencing for that count, consistent with the rule in De Simoni: a sentencing court cannot take into account circumstances that would have warranted a more serious charge than the one actually prosecuted.

The court accepted the psychiatric evidence from Dr Neilssen, who had assessed the offender on two occasions and observed marked improvement in his condition. The offender had been compliant with his antipsychotic medication, had ceased methadone use, and had given up smoking, demonstrating sustained effort at rehabilitation over approximately a year.

Berman SC DCJ emphasised that the purpose of the criminal law is the protection of society, and that this purpose can be served not only through deterrent sentences but also through the rehabilitation of offenders. Where solid evidence of genuine rehabilitation prospects exists, the law does not require an automatically punitive response.

The court was satisfied that a section 11 remand was warranted to allow a fuller assessment of the offender's rehabilitation through participation in a residential programme. The offender had been assessed as suitable to enter the Salvation Army Lake Macquarie Recovery Services Centre, a ten-month full-time residential programme, and the court adjourned sentencing to 23 February 2007.

Orders Made

  • The matter was remanded under section 11 of the Crimes (Sentencing Procedure) Act 1999 and adjourned to 23 February 2007 for sentencing
  • Bail was granted on strict conditions, including:
  • The offender not to be released from custody until written confirmation of a bed at the Salvation Army Lake Macquarie Recovery Services Centre was provided to the correctional centre and to the DPP's office
  • The offender to be released only into the custody of his uncle, who was to accompany him directly to the Centre
  • The offender to reside at, remain at, and participate in the full programme at the Centre
  • The offender to comply with all reasonable directions from Centre staff
  • Bail to be immediately revoked upon any failure to attend, remain at, or participate in the programme, or upon discharge from the programme for any reason
  • The matter was also listed on 19 May 2006 to confirm acceptance into the treatment phase of the programme (attendance excused if the offender had been accepted)

Key Takeaways

  • The District Court confirmed that under the rule in De Simoni, facts that would have supported a more serious charge than the one actually laid cannot be used to aggravate sentence, even if those facts are disclosed in the statement of facts.
  • A section 11 remand to assess rehabilitation prospects remains available even for serious offences involving conditional liberty, where credible psychiatric and personal evidence supports a genuine prospect of rehabilitation.
  • Protecting society through an offender's rehabilitation is a recognised sentencing objective: the court does not regard deterrent sentences as the only, or necessarily the appropriate, response to serious offending.
  • Schizophrenia that significantly impairs an offender's perception, moral judgment, and impulse control at the time of offending is a material consideration in the sentencing exercise.
  • Bail conditions attached to a section 11 remand can be tailored closely to the rehabilitation context, including requiring the offender to enter and remain in a specified residential programme as a condition of liberty.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 11

Cases
- The Queen v De Simoni (1981) 147 CLR 383 (High Court: a sentencing court must not take into account circumstances of aggravation that would have warranted a conviction for a more serious offence than that charged)