Citation: Regina v Barry James Vale [2007] NSWDC 357
Court: District Court of New South Wales
Date: 5 October 2007
Judge(s): Cogswell SC DCJ
Background
The offender was a 19-year-old man with a substantial juvenile criminal record, appearing for sentencing on a charge of break and enter and commit a serious indictable offence under s 112(2) of the Crimes Act 1900. The offence occurred in November 2006 in Armidale, when the offender and a co-offender broke into the home of a man who had recently won $6,000 at poker machines. The offender had been present during the celebrations at the victim's home, observed where the money was hidden, and later returned with the co-offender to steal it.
The offender's role was to show the co-offender where the money was concealed, after which he left the premises. The co-offender remained inside, assaulted the victim when he woke, and then fled with the money. The co-offender subsequently assaulted the offender in the street when the offender asked for his share of the proceeds.
The offender pleaded guilty at the earliest available opportunity. Several months after his arrest, he identified his co-offender to police, provided a signed statement, and undertook to give evidence at the co-offender's trial. Police confirmed they had been unaware of the co-offender's involvement prior to this disclosure.
Legal Issues
- What sentence was appropriate for an 18-year-old (now 19) first-time adult offender convicted of aggravated break and enter, having regard to his juvenile criminal history?
- How should the offender's significant assistance to authorities under s 23 of the Crimes (Sentencing Procedure) Act 1999 be weighted?
- What was the relevance of the offender's age and the conditions of adult custody to the sentencing exercise?
- Whether the balance of the sentence should exceed the statutory one-third ratio, warranting a finding of special circumstances.
Decision
The court assessed the objective gravity of the offence as falling at the lower end of the scale for this category of offending, principally because the offender's own indictable act within the break and enter was larceny rather than assault, and because he left the premises before any violence occurred. The offence nonetheless carried a maximum of 20 years imprisonment, with a standard non-parole period of five years, which the court treated as a reference point.
On subjective matters, the court gave no mitigating weight to the offender's criminal record, which included assaults and robbery offences committed from approximately the age of 13. The court identified a need for specific deterrence. However, several factors operated in the offender's favour: an early guilty plea, expressed remorse, a stable family background, and the fact that this was his first time in adult custody.
The assistance to authorities attracted significant weight. The court found the assistance was timely, material to the arrest and prosecution of the co-offender, and had exposed the offender to genuine risk, including threats and assault while on protection inside the prison system. These harsher custodial conditions were taken into account.
The court found special circumstances justifying a longer parole period than the statutory default. Critically, his Honour concluded that, while a further four months in custody would otherwise have been warranted given the seriousness of the offending, keeping a 19-year-old in adult prison beyond the date of sentencing was not appropriate in the circumstances. The offender was ordered released to supervised parole immediately.
Orders Made
- Sentence of imprisonment of 2 years, with a non-parole period of 10 months and 24 days
- Non-parole period commencing 6 October 2007 and expiring 11 November 2008 (reflecting time already served)
- Immediate release to parole under s 50(1) of the Crimes (Sentencing Procedure) Act 1999
- Parole conditions: supervision by the Probation and Parole Service; compliance with reasonable directions regarding drug and alcohol counselling; notification of any change of residential address
- Direction to report to the Armidale office of the Probation and Parole Service by close of business Monday, 8 October 2007
Key Takeaways
- The District Court confirmed that the s 112(2) standard non-parole period of five years operates as a reference point, not a mandatory minimum, and can be displaced by subjective features including youth, early guilty plea, and material assistance to authorities.
- Assistance to authorities under s 23 of the Crimes (Sentencing Procedure) Act 1999 carries substantial weight where it is timely, materially advances a prosecution the police could not otherwise have mounted, and exposes the offender to demonstrable risk in custody.
- A first period of adult imprisonment is a significant sentencing consideration for a young offender, and the court treated it as a factor capable of justifying release even where a longer period of custody might otherwise have been appropriate.
- Special circumstances were established on the basis that the balance of the term required to exceed one-third of the head sentence to ensure an adequate period of supervised parole, particularly given the offender's history and rehabilitative needs.
- Participation in a joint criminal enterprise does not attract uniform culpability: the court differentiated the offender's role from that of the co-offender who committed the assault, and assessed objective seriousness accordingly.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 112(2) (aggravated break and enter)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 23 (assistance to authorities) and s 50(1) (parole direction)
Cases: No cases were cited in the judgment.