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District Court 14 December 2006

R v Kylie TREGONNING

[2006] NSWDC 148

Theft & property
CRIMINAL LAW SENTENCE FORM 1 BREAK, ENTER & STEAL LARCENY

Citation: R v Kylie TREGONNING [2006] NSWDC 148
Court: District Court of New South Wales
Date: 14 December 2006
Judge(s): Berman SC DCJ

Background

The offender pleaded guilty to one count of break, enter and steal and one count of larceny. Two additional matters were placed on a Form 1 to be taken into account on sentence: an offence of unlawfully entering enclosed lands (related to the primary offence) and an earlier, unrelated break, enter and steal.

On 26 April 2006, while heavily intoxicated by morphine and serapax, the offender forced entry into a residential premises in Darlinghurst that was occupied at the time by a psychologist conducting a consultation. The offender took a number of items before being located by police standing on the kitchen roof, holding bags of stolen property and wearing a fancy dress sailor's hat belonging to the victim's daughter. Police recovered some property, but significant items, including those of emotional value, were not recovered.

Before committing the break and enter, the offender had stolen a backpack from a worker at a nearby church. The victim of the break and enter subsequently moved out of her home due to the anxiety caused by the offence.

  • What sentence was appropriate given the objective seriousness of the offences and the offender's extensive criminal history, including the fact she was on parole at the time?
  • What weight should be given to the offender's profound personal history of trauma, disadvantage, and substance dependency in mitigation?
  • Whether special circumstances existed to justify a non-parole period of less than the statutory proportion of the head sentence.
  • How the principles in R v Fernando applied to an Aboriginal offender whose background was directly connected to patterns of disadvantage within the Aboriginal community.

Decision

Berman SC DCJ acknowledged the objective gravity of the offences. Break, enter and steal is described as a prevalent and serious crime whose harm extends well beyond the monetary value of stolen property. The victim's significant anxiety and decision to vacate her home illustrated foreseeable and lasting consequences of the offending. The offender's commission of these offences while on parole, and her extensive interstate criminal history, were treated as serious aggravating factors.

The court gave detailed consideration to a psycho-social assessment report prepared by a Legal Aid social worker. That report documented a personal history of profound and sustained trauma: childhood sexual and physical abuse from the age of three or four, a mother whose alcoholism disrupted the offender's schooling and childhood, repeated domestic violence in adult relationships, the deaths of a partner and a sister, and a gang rape. The court found that this history significantly diminished the offender's capacity to make appropriate choices about substance use, and that the Fernando principles, which recognise the particular circumstances of Aboriginal offenders and the social disadvantage disproportionately experienced in Aboriginal communities, had direct application.

Notwithstanding the need for a substantial punitive response and meaningful personal deterrence, the court applied what it described as the concept of mercy. The offender's recent motherhood, her application to participate in the mother and baby program, and her evident intelligence were noted. The court found special circumstances warranting a non-parole period of less than half the head sentence, reasoning that a lengthy period of post-release supervision would be important to assist the offender's rehabilitation.

Orders Made

  • Break, enter and steal (including Form 1 matters): imprisonment with a non-parole period of 18 months and a head sentence of 3 years and 6 months.
  • Larceny: fixed term of 12 months' imprisonment, commencing 26 April 2006, concurrent with the primary sentence (no non-parole period set, as there was no utility in doing so given full concurrency).

Key Takeaways

  • The District Court confirmed that the harm caused by break, enter and steal is not measured solely by the value of property taken; the lasting psychological impact on victims, including anxiety and displacement from their home, forms part of the court's assessment of seriousness.
  • Applying the Fernando principles, the court reduced the moral culpability attributed to the offender's drug-affected state by reference to her history of trauma and the social disadvantage disproportionately experienced in Aboriginal communities, which materially diminished her capacity to make sound choices about substance use.
  • A finding of special circumstances under sentencing law permitted the non-parole period to fall below the standard statutory proportion where both a lengthy custodial sentence and an extended period of supervised parole were each independently warranted.
  • Commission of offences while on parole was treated as a matter of serious aggravation, capable of substantially increasing the sentence that would otherwise have been imposed.
  • Profound and documented personal disadvantage, even where it does not excuse offending, can operate as a meaningful mitigating factor and engage the concept of mercy in sentencing, particularly where the offender's ability to exercise rational choice was objectively compromised from an early age.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)

Cases:
- R v Fernando (the Fernando principles concerning the sentencing of Aboriginal offenders in the context of social disadvantage, cited by the court but not given a full citation in the judgment)