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District Court 25 August 2006

R v Vernon Campbell Chillie No. 1

[2006] NSWDC 36

Theft & property
CRIMINAL LAW SENTENCE CRIMES ACT S112 (2) OFFENCES DETERMINING MID RANGE SERIOUSNESS INDIGENOUS OFFENDER

Citation: R v Vernon Campbell Chillie No. 1 [2006] NSWDC 36
Court: District Court of New South Wales
Date: 25 August 2006
Judge(s): Nicholson SC DCJ

Background

The offender, a 29-year-old Indigenous man with an extensive criminal history dating back to his teenage years, pleaded guilty to two counts of aggravated break and enter with intent to commit a serious indictable offence under s 112(2) of the Crimes Act 1900. Both offences occurred on the same night in October 2003 at residential premises in Edgecliff, Sydney, while the offender was already on parole for similar offences.

In the first offence, the offender entered the home of a 61-year-old woman living alone and moved through her bedroom while she slept, stealing her wallet, credit card and car keys. At premises four doors away, he stole cash, a wallet containing credit cards, and a plasma television valued at $7,000. In that second property, he was discovered by a sleeping female occupant when he turned on the bathroom light, prompting his flight. He was arrested shortly afterwards attempting to start the stolen vehicle.

His parole was revoked upon arrest and he had been in continuous custody from October 2005. A related charge of attempting to take and drive a conveyance was listed on a Form 1, meaning the court took it into account without recording a separate conviction.

  • What was the objective seriousness of the two aggravated break and enter offences, measured against the range of offending of the same type?
  • How should the offender's personal (subjective) circumstances, including his Indigenous background, lengthy drug history, and recidivism, bear on the sentence?
  • What weight should be given to rehabilitation prospects, general deterrence and personal deterrence in the circumstances?
  • Whether the offences attracted a standard non-parole period, and whether special circumstances existed to vary the statutory ratio between non-parole period and balance of term.
  • Whether a suspended sentence under s 12 of the Crimes (Sentencing Procedure) Act was appropriate, given the offender's history and rehabilitation prospects.

Decision

The court assessed the objective seriousness of both offences as falling within the mid-range for s 112(2) offending. His Honour emphasised that the essence of the offence lies not merely in the theft but in the profound invasion of personal space, particularly where the victims are present in their homes. The penalty structure of the Crimes Act, which escalates from five years for simple larceny to twenty years where the occupant is present, underscored the legislature's recognition of this dimension. The first victim's vulnerability as an elderly woman living alone was noted, even though there was no evidence the offender knew this at the time.

On subjective matters, the court took into account the offender's difficult personal history, including long-term poly-drug abuse, his Indigenous background, and a life marked by disadvantage. Despite his significant prior record, the court found meaningful, credible evidence of a genuine change in attitude toward rehabilitation, supported by material from the Parole Board process. His Honour declined to treat the prior record as an aggravating factor in the circumstances, observing that the demonstrated rehabilitation prospects altered the usual calculus.

The court accepted the Crown's submission that personal deterrence was a significant consideration, but found that a suspended sentence would adequately address that need: any breach of the rehabilitation program would return the offender to full-time custody. General deterrence was given reduced weight, as the court noted the offence was unlikely to attract widespread public attention. No special circumstances were found to justify varying the standard ratio of non-parole period to balance of term, partly because of the personal deterrence imperative.

The court indicated its intention to impose a term of two years imprisonment for both matters (taking the Form 1 into account), with a non-parole period of twenty months and a balance of term of four months. The sentence was to be suspended under s 12. Sentencing was formally adjourned to late October 2006, pending the outcome of the Parole Board hearing, and bail was refused in the interim.

Orders Made

  • Imprisonment of two years in respect of both matters (inclusive of the Form 1 matter).
  • Non-parole period of twenty months; balance of term of four months.
  • Sentence to be suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act.
  • Matter adjourned to late October 2006 pending Parole Board outcome.
  • Bail refused.

Note: These orders were indicated as the court's intention at the time of the judgment; formal sentencing was adjourned and had not yet occurred as at the date of this decision.

Key Takeaways

  • Aggravated break and enter under s 112(2) of the Crimes Act 1900 carries a maximum of twenty years precisely because the presence of occupants in the home dramatically elevates the criminality beyond simple theft; the sentencing court must reflect this in its objective assessment.
  • A recidivist offender's prior criminal history does not automatically operate as an aggravating factor if other circumstances, particularly credible and demonstrated rehabilitation prospects, materially alter the sentencing balance.
  • Under the framework drawn from R v Cuthbert, R v Rushby and R v Hayes, the protection of the community remains the primary focus of sentencing, but this does not invariably require full-time incarceration where a suspended sentence provides a sufficient personal deterrent through the threat of immediate re-imprisonment upon breach.
  • The District Court drew on the Canadian Supreme Court's reasoning in R v Gladue [1999] 1 SCR 688 as a touchstone for the proposition that sentencing must account for the individual, the offence, the victims and the community together, including the offender's Indigenous background as a relevant subjective consideration.
  • No special circumstances were found, meaning the standard ratio between non-parole period and balance of term was maintained, with personal deterrence cited as a reason not to extend the parole period beyond the statutory norm.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 112, 112(2), 113
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12
- Evidence Act 1995 (NSW), s 4

Cases
- The Queen v Gladue [1999] 1 SCR 688 (Supreme Court of Canada)
- R v Cuthbert [1967] 2 NSWR 329
- R v Rushby [1977] NSWLR 597
- R v Hayes [1984] 1 NSWLR 740