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District Court 17 August 2007

R v Lettice, David

[2007] NSWDC 373

Theft & property
CRIMINAL LAW SENTENCING STEAL FROM PERSON RETURN OF SOME PROCEEDS TO VICTIM TAKING VICTIM TO SAFE HOUSE BREACH OF SEVERAL GOOD BEHAVIOUR BONDS

Citation: R v Lettice, David [2007] NSWDC 373
Court: District Court of New South Wales
Date: 17 August 2007
Judge(s): Nicholson SC DCJ

Background

The offender, a 26-year-old Aboriginal man from Narrabri, pleaded guilty to stealing $60 from the person of a 21-year-old man with an intellectual disability. The theft occurred in the early hours of 27 October 2006, when the offender directed the victim to an ATM and instructed him to withdraw $60 from a $75 account balance. The Crown accepted the plea to the lesser charge of steal from person in full satisfaction of an indictment that also included a charge of robbery in company, meaning the offender was to be sentenced on the basis that he was innocent of the more serious offence.

The factual background involved a group of unknown males who had already assaulted and robbed the victim on a bridge before the offender became involved. The court found that the offender was not responsible for any physical violence, did not directly threaten the victim, and was not established to have been acting in company with those who committed the initial assault.

After obtaining the money, the offender walked the victim to a friend's house, introduced him to a man named Wal, and remained with the victim for approximately 45 minutes. During that time the offender returned $20 of the $60 to the victim, and the victim was ultimately driven safely to his destination.

  • What was the objective seriousness of the offence, accounting for the surrounding circumstances including the victim's vulnerability and the involvement of others?
  • What weight should be given to mitigating factors, including the offender's conduct in protecting the victim, partial return of money, and personal background?
  • How should the court approach sentencing given the offender's breach of multiple existing good behaviour bonds (nine in total)?
  • What was the appropriate sentence for a 26-year-old Aboriginal offender with limited education, skills, and personal resources, including consideration of rehabilitation prospects?

Decision

The court assessed the objective criminality of the offence as significant, particularly because the victim was intellectually disabled, intoxicated, alone, injured, and in a vulnerable position. The court noted that the setting was a public street late at night and that the offender had directed the victim to withdraw money from an ATM, retaining $40 (or passing it to co-offenders) and returning $20. The selection of $60 from a $75 balance, and the return of $20, were found to reflect an intention to minimise the victim's loss, although the court acknowledged an alternative motive of discouraging a complaint could not be ruled out.

The court identified several mitigating features. The offender was not violent, did not participate in the earlier assault, and took steps to remove the victim from further harm by bringing him to a safe environment. The court was satisfied that the offender's act of bringing the victim to Wal's house effectively ended the criminal conduct toward the victim. The offender's partial return of money was characterised as an "honourable action," although insufficient to eliminate his criminal responsibility.

The court weighed the offender's personal circumstances carefully. He was a young Aboriginal man raised in difficult circumstances in a regional town, with limited formal education, few employment prospects, and a history of prior offending. However, evidence was presented of recent progress in rehabilitation following a prior period of imprisonment, and the court regarded his prospects as meaningful if supported. The court declined to impose a sentence of full-time custody, concluding that a suspended sentence served the interests of both the offender's rehabilitation and the community.

In relation to the nine breached good behaviour bonds, the court took no action, citing the circumstances in which the bonds had been given and the offender's progress since release from custody. The court noted that those bonds would continue to run, meaning any further offending within their timeframes would be taken into account.

Orders Made

  • The offender was convicted of stealing $60 from the person of the victim on 27 October 2006 at Narrabri.
  • Sentenced to 9 months imprisonment, suspended pursuant to section 12 of the Crimes (Sentencing Procedure) Act, conditional on a 9-month good behaviour bond commencing 17 August 2007 and expiring 16 May 2008.
  • Bond conditions: (1) be of good behaviour; (2) provide address to the Registry; (3) any further criminal act during the bond period to result in the matter returning for sentencing; (4) accept supervision by Probation and Parole.
  • No action taken on the nine breached good behaviour bonds, which were to continue running.
  • Compensation order made in favour of the victim in the sum of $40, to be paid within 28 days (by 15 September 2007).

Key Takeaways

  • A guilty plea to steal from person was accepted by the Crown in full satisfaction of an indictment including the more serious charge of robbery in company, with sentencing proceeding on the basis of innocence of the higher charge.
  • The District Court treated the victim's intellectual disability and intoxication as aggravating the objective seriousness of the offence, even where the offender did not participate in the violence that preceded the theft.
  • Post-offence conduct, including guiding the victim to safety and partially returning stolen funds, was found to constitute genuine mitigation, though the court acknowledged mixed motives were possible.
  • Rehabilitation prospects for an Aboriginal offender from a regional community, assessed in the context of limited education and personal resources, formed a substantial part of the sentencing analysis and supported the imposition of a suspended sentence rather than full-time custody.
  • Under section 12 of the Crimes (Sentencing Procedure) Act, a court may suspend a sentence of imprisonment and impose conditions including Probation and Parole supervision; separately, the court exercised a power to make a compensation order for the net loss suffered by the victim.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), section 12 (suspended sentences) and section 9 (good behaviour bonds)

Cases cited:
No cases were cited in the portions of the judgment available.