Citation: R v Sean Luke TIBBEY [2009] NSWDC 146
Court: District Court of New South Wales
Date: 20 March 2009
Judge(s): Berman SC DCJ
Background
The offender, a young man who had just turned eighteen at the time of the relevant offences, faced sentencing for two counts of break, enter and steal arising from a single night of offending in Scone. He and a co-offender broke into a Target store by removing a roof panel and cut through padlocks on shipping containers at the rear of the premises, stealing electronic equipment. They then broke into further shipping containers at a nearby shop, though little property was taken from that second location.
The matter had a prior history before the same judge. On an earlier occasion the court had placed the offender on a section 11 remand (a form of deferred sentencing designed to give an offender an opportunity to demonstrate rehabilitation) after forming the view that genuine prospects for rehabilitation existed. The offender breached that remand by committing a further offence while subject to it, and by failing to report to the Probation and Parole Service as required.
The offender had a difficult background. His mother was a drug user who had not maintained contact with him, and his father had spent time in custody for drug offences. His grandmother had raised him from a young age. He also suffered from ADHD, which the court found was directly and indirectly connected to his offending.
Legal Issues
- What sentence was appropriate following a breach of a section 11 remand, including a further offence committed while on remand?
- How should the offender's ADHD diagnose affect the weight given to general deterrence as a sentencing purpose?
- What role did personal deterrence play in the sentencing exercise given the offender's age and custodial history?
- What discount, if any, was warranted for the pleas of guilty?
- Whether a further non-custodial disposition (section 12 remand or home detention) remained appropriate?
Decision
The court declined to impose a further non-custodial sentence. The judge noted he had warned the offender at the time of the section 11 remand that a further offence would result in full-time imprisonment. The breach confirmed that the earlier optimism about rehabilitation had been, as the judge put it, "perhaps a bit optimistic." A section 12 remand or home detention was rejected as insufficient to achieve personal deterrence.
The offences themselves were treated as serious. They were an aggravated form of break, enter and steal, attracting a standard non-parole period of five years set by Parliament. Although the standard non-parole period did not apply directly in this case (given the guilty pleas), the court used it as an indicator of legislative intent about the gravity of such conduct.
The offender's ADHD diagnosis was accepted as relevant to sentencing. The court accepted that the condition reduced the weight to be given to general deterrence, because ADHD diminishes a person's capacity to reason about the rightfulness or wrongfulness of conduct. However, the court made clear that a reduced role for general deterrence does not automatically produce a shorter sentence. In this case, personal deterrence assumed greater importance, particularly given the breach of the prior remand.
A 25 per cent discount was applied for the guilty pleas. The court gave effect to that discount by making the sentences on each count wholly concurrent, rather than by reducing the head sentence on each count individually. The court also made a recommendation that the offender be reviewed immediately by Justice Health on his return to custody regarding the suitability of his current medication (Zyprexa), and imposed parole conditions requiring continued medical treatment and compliance with supervision.
Orders Made
- On each offence: imprisonment with a non-parole period of six months, commencing 6 April 2009 and expiring 5 October 2009.
- Head sentence on each offence: eighteen months.
- Sentences made wholly concurrent; total sentence expiring 5 October 2010.
- Parole conditions imposed: continued treatment with the treating medical practitioner (or a recommended substitute); compliance with all prescribed medication; compliance with all reasonable directions of the Probation and Parole Service.
- Recommendation made that Justice Health review the appropriateness of the offender's current medication (Zyprexa) immediately upon his return to custody.
Key Takeaways
- A breach of a section 11 remand, particularly where the offender commits a further offence during the remand period, will ordinarily result in full-time imprisonment where the court has expressly warned the offender of that consequence at the time of the original order.
- The District Court confirmed that an offender's ADHD diagnosis can reduce the weight given to general deterrence in sentencing, on the basis that the condition impairs the offender's capacity to reason about the wrongfulness of conduct.
- Reduced reliance on general deterrence does not necessarily produce a shorter overall sentence. Other purposes of sentencing, particularly personal deterrence, may assume heightened relevance and counterbalance the reduction.
- Where two or more offences are sentenced concurrently, that concurrency can itself give effect to a guilty plea discount, without reducing the individual head sentence on each count.
- Standard non-parole periods set by Parliament, even where not directly applicable due to a guilty plea, remain a relevant indicator of the seriousness with which the legislature intends courts to treat particular categories of offending.
Legislation and Cases Referenced
Legislation:
- Section 11 of the relevant NSW sentencing legislation (remand for rehabilitation, referred to in the judgment as a "s 11 remand")
- Section 12 of the relevant NSW sentencing legislation (alternative non-custodial disposition, referred to as a "s 12 remand")
- Standard non-parole period provisions applicable to aggravated break, enter and steal (specific Act not named in the judgment)
Cases cited: None cited in the provided text.