Citation: Regina v Benjamin Elthan [2007] NSWDC 258
Court: District Court of New South Wales
Date: 2 March 2007
Judge(s): Finnane QC DCJ
Background
The offender, a 26-year-old man with an extensive criminal history, pleaded guilty to breaking and entering a liquor store in company and stealing three cartons of alcohol. The offence was committed in the early hours of the morning while the offender was on parole. He and two juvenile companions had been drinking in the village of Woodstock near Cowra, ran out of alcohol, and could not obtain more locally.
To travel to Cowra, the offender stole a car from a nearby garage, taking advantage of keys left inside. At the Cellarbrations Liquor Store in Cowra at approximately 3.25am, he reversed the stolen vehicle into the front doors, driving it into the store. The car became jammed between concrete bollards. One of the juveniles then retrieved three cartons of alcohol from inside the store.
All three were arrested in central Cowra later that morning after police identified them from closed-circuit television footage. A Form 1 was also taken into account, covering the unlawful taking of the motor vehicle and a separate offence of entering a dwelling with intent.
Legal Issues
- What sentence was appropriate given the nature and circumstances of the offending, including that it occurred in company, involved significant property damage, and was committed while the offender was on parole?
- How should the offender's extensive criminal history, personal background, and alcohol dependency be weighed in sentencing?
- Whether the balance of the term (the parole period) should be extended beyond the standard ratio, and if so, on what basis?
Decision
His Honour accepted that the offender's long history of offending was driven primarily by a severe alcohol dependency rooted in a difficult childhood. The offender grew up in hotels with an alcoholic mother, began drinking as a young child, and was later placed in a family group home before being relocated to Dubbo, where he became involved with alcohol, cannabis, and amphetamines. The sentencing judge accepted this background as relevant context but not as a justification for the conduct.
The criminal history was described as "a depressing one" spanning multiple pages and including numerous prior terms of imprisonment, several of which had been served at District Court level. Previous attempts to impose supervision, bonds, and drug and alcohol counselling had not produced any change in behaviour. The offender committed the present offences while already on parole from a prior District Court sentence.
His Honour found that the extended parole period was warranted given the offender's demonstrated need for rehabilitation. The standard ratio under the relevant sentencing provisions requires the non-parole period to be at least three-quarters of the head sentence, but the court exercised its discretion to depart from that ratio. The non-parole period was set at approximately two years and four months, with a head sentence of four years and seven months, producing a longer-than-standard parole period to allow for meaningful rehabilitation.
Parole conditions were directed to include relapse prevention programs and random urinalysis testing. The court also made recommendations that the offender be placed on drug and alcohol programs while in custody and that his security classification be reviewed downward as soon as practicable.
Orders Made
- Non-parole period: 31 July 2006 to 30 November 2008
- Balance of term: 1 December 2008 to 28 February 2011 (head sentence of four years and seven months)
- Parole conditions to include relapse prevention programs and random urinalysis testing
- Recommendation to parole authorities to consider admission to a long-term rehabilitation program
- Recommendation that the offender be placed on drug and alcohol programs during imprisonment
- Recommendation that reclassification to below maximum security be considered as soon as possible
Key Takeaways
- The District Court extended the parole period beyond the standard ratio under the Crimes (Sentencing Procedure) Act 1999, citing the offender's entrenched alcohol dependency and need for sustained rehabilitation.
- A serious indictable offence committed in company, involving a stolen vehicle used to smash into premises, attracted a significant head sentence even where the offender's personal background disclosed genuine disadvantage.
- Sentencing for offenders with extensive prior criminal histories and repeated failures to respond to non-custodial interventions may appropriately include structured conditions on parole, particularly where rehabilitation programs have not previously been completed.
- The court found that committing the offence while on parole was a significant aggravating factor, reinforcing the need for a meaningful custodial component.
- A guilty plea entered on the first day of hearing, explained in part by limited access to legal advice before that point, was treated as a relevant mitigating factor, though its weight was moderated by the relatively late timing.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
Cases cited: None cited in the judgment.