Citation: R v Steven William Shearer [2007] NSWDC 18
Court: District Court of New South Wales
Date: 9 February 2007
Judge(s): Berman SC DCJ
Background
The offender pleaded guilty to aggravated break enter and steal arising from an incident on 4 July 2006 at a residential property in North Narrabeen. He broke into the home while accompanied by a co-offender who acted as lookout, and began removing electrical equipment including a plasma television. The charged aggravating circumstance was that the offender acted in company.
The offending escalated when an occupant, who was carrying her seventeen-month-old grandchild, came downstairs and discovered the offender. Her partner then physically detained him. The offender responded by producing a syringe from his pocket and pointing it at the man holding him, causing him to release his grip before the offender fled.
Police arrested the offender shortly afterwards at his home. He had been in custody continuously from 4 July 2006. A separate Form 1 matter (an offence of avoiding apprehension by use of an offensive weapon under s 33B of the Crimes Act) was also before the court for consideration in sentencing.
Legal Issues
- What weight should be given to the standard non-parole period of five years for aggravated break enter and steal, in light of the early guilty plea?
- How should the offender's possible brain damage, mental illness, and drug dependence affect the sentencing exercise, particularly with respect to general and personal deterrence?
- Was there a risk of double-counting in treating the possession of a syringe as both a circumstance of aggravation for the primary offence and as the basis of the Form 1 matter?
- Did special circumstances exist to justify a greater than usual proportion of the sentence being allocated to the parole period?
Decision
The court identified several features that made this offence more serious than a standard break enter and steal. The crown charged only the "in company" aggravation, but the court noted that other aggravating circumstances existed: the premises were occupied at the time (meaning the offender was deemed under the Crimes Act to have known someone was home), and the offender was armed with a syringe. The court was careful, however, not to double-count the weapon by treating it as an aggravating factor for the primary offence while also taking it into account on the Form 1 matter.
On the question of the offender's mental health and drug use, the court accepted evidence that the offender may have suffered brain damage from birth complications and had a history of mental illness and heavy prescription and non-prescription drug use. He appeared to have been under the influence of prescription medication at the time of the offence. These factors reduced the relevance of general deterrence in the sentence, because such considerations carry less weight where an offender's capacity for rational decision-making is impaired. However, personal deterrence remained significant: the court found the offender was aware that failing to manage his medication and drug use would lead to further offending.
The court applied a 25 per cent discount to the sentence that would otherwise have been imposed, reflecting the early guilty plea. The standard non-parole period of five years remained a guidepost rather than a fixed minimum, and the sentence fell substantially below that figure after accounting for the discount and the offender's personal circumstances.
Special circumstances were found to exist, warranting a non-parole period that represented a greater proportion of the head sentence than the statutory default. The court emphasised that the offender's long-term rehabilitation would depend on sustained engagement with community-based drug treatment and mental health services, making a longer parole period appropriate.
Orders Made
- Non-parole period of 18 months, commencing 4 July 2006 and expiring 3 January 2008
- Head sentence of 3 years imprisonment
- Upon release on parole, the offender must obey all reasonable directions of the Probation and Parole Service, including attendance at any long-term community-based drug rehabilitation programs recommended by that Service
- The offender must maintain regular contact with a Mental Health Service, preferably one with a multidisciplinary team including social workers, psychologists, and psychiatrists
Key Takeaways
- The District Court confirmed that a standard non-parole period functions as a guidepost rather than a mandatory minimum, and may be departed from where personal circumstances such as mental illness and drug dependence bear materially on the sentencing exercise.
- Where multiple aggravating circumstances exist but only one is charged by the Crown, the sentencing court may note the uncharged circumstances as context for assessing overall seriousness without formally relying on them to increase the sentence.
- A risk of double-counting arises when a single factual element (here, possession of a syringe) could simultaneously support a circumstance of aggravation for the principal offence and form the basis of a related Form 1 matter; the court must guard against applying that element twice.
- Mental illness and possible organic brain damage were found to diminish the role of general deterrence in sentencing, while leaving intact the court's ability to impose a sentence with a substantial personal deterrence component.
- Special circumstances were established where the offender's rehabilitation depended on an extended period of supervised community support, justifying a parole period that exceeded the statutory proportion relative to the head sentence.
Legislation and Cases Referenced
Legislation:
- Crimes Act (NSW), including s 105A(2A) (deemed knowledge of occupancy in aggravated break enter and steal) and s 33B (avoiding apprehension by use of an offensive weapon)
- Mental Health Act (NSW)
Cases cited: None cited in the provided text.