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District Court 11 May 2007

R v Alan COSGROVE

[2007] NSWDC 375

Theft & property
CRIMINAL LAW SENTENCE BREAK, ENTER AND STEAL FORM 1 DNA ANALYSIS SIGNIFICANT DRUG USER

Citation: R v Alan Cosgrove [2007] NSWDC 375
Court: District Court of New South Wales
Date: 11 May 2007
Judge(s): Berman SC DCJ

Background

The offender, a 28-year-old man with a history of serious drug dependency, appeared for sentencing after pleading guilty at an early stage to break, enter and steal. A second offence of break, enter with intent to steal, committed at around the same time, was placed on a Form 1 to be taken into account (meaning it was considered at sentencing without a separate conviction being recorded).

Both offences were committed in December 2004 while the offender was on bail. The offences were not linked to the offender until DNA analysis results were returned in mid-2005, creating a significant gap between the conduct and the charging. The delay was not attributable to the offender.

During the intervening period, the offender had been convicted and sentenced for a robbery offence. His non-parole period for that matter expired on 24 November 2006, after which his continued custody related solely to the present proceedings. He had been in continuous custody since 20 December 2004.

  • What discount was appropriate for an early guilty plea?
  • How should the prosecution delay caused by the time taken to obtain DNA results affect the sentence?
  • Was the commencement date of the sentence to be backdated to account for the delay?
  • Did special circumstances exist justifying a departure from the standard ratio between the non-parole period and head sentence?
  • What weight should be given to the offender's drug addiction, rehabilitation prospects, and conditions of custody?

Decision

The court applied a 25 per cent discount to the sentence that would otherwise have been imposed, reflecting the early guilty plea. The offence itself was treated as particularly serious: the offender removed a large quantity of valuable and emotionally significant items, including two wedding bands, from the victim's home, and none of the property was ever recovered.

On the question of delay, the court accepted that the offender was prejudiced by the gap between offending and prosecution. That gap had disrupted his access to drug rehabilitation programs in custody and prevented continuity of counselling. The court took the delay into account in formulating the overall sentence, rather than backdating its commencement. The sentence was fixed to commence on 25 November 2006, the day after the expiry of the non-parole period for the earlier robbery. Backdating further, the court reasoned, would effectively give the offender credit for time properly referable to a separate sentence.

Special circumstances were found to exist on two bases: the disruption to rehabilitation programs caused by the belated charge, and the fact that the offender had been in continuous custody since December 2004. Those circumstances justified a significant departure from the standard statutory ratio between the non-parole period and the head sentence, resulting in a comparatively short non-parole period against the three-year head sentence. The court also noted the harder conditions associated with the offender being held on protection, and recommended his placement in the Nura Nura drug rehabilitation program before release.

Orders Made

  • The offender was sentenced to imprisonment commencing 25 November 2006.
  • Non-parole period: one year, expiring 24 November 2007, on which date the offender was to be released to parole.
  • Head sentence: three years.
  • The court recommended the offender be placed in the Nura Nura rehabilitation program prior to release.

Key Takeaways

  • Where a DNA-based delay in charging is not attributable to the offender, the sentencing court may take that delay into account in formulating the overall sentence, even without backdating the commencement date.
  • The District Court declined to backdate the sentence to a period when the offender was serving a non-parole period for an unrelated offence, finding that doing so would confer an unearned benefit by effectively treating unrelated custodial time as served against the present matter.
  • Special circumstances justifying a departure from the standard non-parole ratio can arise from a combination of disrupted rehabilitation access and an extended period of continuous pre-sentence custody.
  • Drug addiction, while not an excuse for offending, remained relevant to the assessment of rehabilitation prospects and the appropriate structure of the sentence.
  • Conditions of protective custody, being generally harder than those experienced by the general prison population, were treated as a factor bearing on the overall sentence.

Legislation and Cases Referenced

Legislation:
- No specific legislation was cited in the judgment text, though reference is made to Form 1 procedure under New South Wales criminal sentencing practice and the statutory non-parole ratio.

Cases:
- No cases were cited in the judgment text.