Citation: R v Alexander Carl Parkes [2007] NSWDC 376
Court: District Court of New South Wales
Date: 25 May 2007
Judge(s): Berman SC DCJ
Background
The offender pleaded guilty to being an accessory after the fact to break, enter and steal in circumstances of aggravation. The aggravating circumstance was that the principal offender committed the offence in company with the offender. The offence occurred at a residential home in North Narrabeen on 4 July 2006.
The principal offender forced entry into the home and began removing electrical equipment, while the offender acted as a lookout outside. When two occupants confronted the principal offender inside, he produced a syringe as a weapon to secure his escape. Both men then fled and were arrested shortly afterwards.
The offender was 32 years old at sentencing. He had a history of heavy drug and alcohol use, with periods of abstinence followed by relapses. His drug dependency and need for money to fund drug use were the immediate causes of the offence. He had begun casual employment and was attending a mental health service at the time of sentencing.
Legal Issues
- What was the appropriate sentence for an accessory to aggravated break, enter and steal, having regard to the objective seriousness of the conduct and the offender's personal circumstances?
- How should the offender's sentence be calibrated against the sentence imposed on the principal offender, Mr Shearer?
- Whether the sentence could appropriately be suspended under section 12 of the Crimes (Sentencing Procedure) Act 1999.
Decision
The court noted at the outset that the form of the indictment was unusual, describing the offender as an accessory after the fact to an offence in which he had himself been a participant as a co-offender. The judge commented, with measured irony, that this appeared to be "creative plea bargaining," though he confirmed he was nonetheless able to proceed to sentence.
On objective seriousness, the court recognised the significant maximum penalty of 20 years' imprisonment and the absence of a standard non-parole period due to the accessorial nature of the liability. The court also noted that occupants were present in the home during the offence, an additional aggravating feature under section 105A(2)(a) of the Crimes Act 1900, and that the offence required planning in the allocation of roles.
In comparing the offender's position with that of Mr Shearer, the court identified several factors warranting a lesser sentence. Mr Shearer had a worse criminal record, was subject to a standard non-parole period, physically entered the premises, and produced a syringe as a weapon. There was no evidence that the offender knew Mr Shearer was armed or would deploy the syringe. The court applied a 25 per cent discount for the early guilty plea.
The court found that a two-year term of imprisonment was appropriate but that it could be suspended. The offender had taken steps toward rehabilitation, was in casual employment, and was receiving mental health treatment. The court expressed concern that a term of full-time custody could undo those steps, while remaining satisfied that suspension was warranted given the offender's circumstances and the comparatively lesser role he played.
Orders Made
- The offender was sentenced to 2 years' imprisonment, suspended under section 12 of the Crimes (Sentencing Procedure) Act 1999.
- The offender was required to enter into a 2-year good behaviour bond on the following conditions:
- To be of good behaviour.
- To accept supervision of the Probation and Parole Service and comply with all reasonable directions.
- To attend courses, counselling, and other programs as directed by Probation and Parole.
- To continue attending the Northern Beaches Mental Health Service at Queenscliff Community Health Centre and comply with recommended treatment.
- To attend the Dee Why District office of the Probation and Parole Service within five days of the date of sentence.
Key Takeaways
- In sentencing co-offenders, the District Court undertook a careful comparison between the roles of each participant, reducing the accessory's sentence relative to the principal's on the basis of lesser involvement, absence of a prior record of comparable severity, and ignorance of the principal's use of a weapon.
- A 25 per cent sentencing discount applied where the offender entered a guilty plea at the first available opportunity.
- Under section 12 of the Crimes (Sentencing Procedure) Act 1999, a court may suspend a term of imprisonment where the circumstances of the offender, including prospects of rehabilitation and current engagement with treatment, support that course.
- The presence of occupants in the home at the time of the break-in constituted an additional aggravating circumstance under section 105A(2)(a) of the Crimes Act 1900, applicable even to the accessory.
- An offender's lack of awareness that a co-offender was armed and intended to use a weapon is a relevant consideration in fixing the appropriate level of sentence, distinguishing the accessory's moral culpability from that of the principal.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), including section 105A(2)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including section 12
Cases:
- No cases were cited in the judgment.