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Local Court 2 July 2007

Police v Dixon

[2007] NSWLC 21

Theft & property
SENTENCE PARTIAL CUMULATION WHETHER VULNERABLE VICTIMS JURISDICTIONAL LIMIT IN LOCAL COURT DRUG ADDICTION BY OFFENDER FERNANDO PRINCIPLES

Citation: Police v Dixon [2007] NSWLC 21
Court: Local Court of New South Wales (Moree)
Date: 2 July 2007
Judge(s): Magistrate G Lerve

Background

The offender, an adult male, faced sentencing for multiple offences of break, enter and steal and related matters arising from two separate incidents in Narrabri in late 2006 and early 2007. The first set of offences occurred on the night of 27 to 28 November 2006 at the Namoi Valley Aged Care Complex, where the offender entered the rooms of two elderly female residents, both aged 88. One resident woke to find him at her dressing table and lay frozen with fear; the other confronted him and pressed her emergency alert. Property including a purse and pillowcase was taken.

The second offence occurred on 20 January 2007 when the offender broke into an unoccupied dwelling, removed a safe in a wheelie bin, took jewellery, and later forced the safe open over several days. He was arrested after police received information about the safe's location and he made full admissions in an electronically recorded interview.

The offender pleaded guilty to three charges on the first set of matters following plea negotiations, having originally faced more serious charges. He pleaded guilty to the second matter at the earliest opportunity. Three additional offences (possession of a prohibited substance, goods in custody, and possession of housebreaking implements) were placed on a Form 1 to be taken into account on sentence.

  • Whether the victims of the aged care offences qualified as "vulnerable" persons for the purposes of sentencing under the Crimes (Sentencing Procedure) Act 1999 s 21A
  • How the 25% guilty plea discount applies where the assessment of total criminality exceeds the Local Court's two-year jurisdictional maximum (the principle from R v Doan)
  • Whether the offender's drug addiction and personal circumstances warranted mitigation under the Fernando principles
  • How to structure cumulative and concurrent sentences across multiple matters while respecting the principle of totality
  • Whether special circumstances existed to justify adjusting the ratio of non-parole period to balance of term, and how to "carry through" that finding across cumulative sentences (following R v Martin)

Decision

Magistrate Lerve found that the two elderly residents at the aged care facility were vulnerable victims within the meaning of the sentencing legislation, treating this as an aggravating factor. The offender had entered their private rooms at night at a residential aged care complex. One victim was too frightened to move or reach her emergency buzzer during the intrusion, and the other experienced ongoing sleep difficulties afterwards.

On the question of drug addiction, the Magistrate applied the Fernando principles, which recognise that drug dependency is a mitigating factor to a degree but does not excuse criminal conduct. The offender's admission that he had taken Valium on the day of the second offence and was seeking money for basic necessities was noted, though the overall criminality remained serious.

The Magistrate assessed the total criminality as warranting approximately two and a half years' imprisonment before discounts, which exceeded the Local Court's two-year jurisdictional limit. Consistent with R v Doan, the 25% plea discount was applied to that initial assessment rather than to the jurisdictional ceiling. The Magistrate also found special circumstances justifying a departure from the standard non-parole period ratio, and applied the approach in R v Martin to carry that finding through the cumulative sentence structure.

Sentences for the November 2006 matters were imposed as fixed terms (to avoid the structural complications of imposing non-parole periods on multiple concurrent matters). A partially cumulative sentence with a non-parole period and balance of term was imposed for the January 2007 matter, commencing in September 2007 after partial overlap with the earlier sentences.

Orders Made

Matter H54731302 (November 2006 offences):
- Sequence 6 (Malicious Damage): Fixed term of 1 month imprisonment, 5 June 2007 to 4 July 2007
- Sequence 7 (Break and Enter with Intent): Fixed term of 10 months imprisonment, 5 June 2007 to 4 April 2008
- Sequence 8 (Break Enter and Steal, incorporating Form 1 matters): Fixed term of 12 months imprisonment, 5 June 2007 to 4 June 2008

Matter H29638240 (January 2007 offence):
- Sequence 1 (Break Enter and Steal): Non-parole period of 12 months, 5 September 2007 to 4 September 2008; balance of term of 7 months, 5 September 2008 to 4 April 2009

The offender was also credited for two weeks of pre-sentence custody served bail refused.

Key Takeaways

  • Elderly residents of aged care facilities were treated as vulnerable victims under the sentencing legislation, with the intrusion into their private rooms at night identified as an aggravating feature.
  • Under the principle in R v Doan, where total assessed criminality exceeds the Local Court's jurisdictional limit of two years, the guilty plea discount applies to the initial assessment of criminality rather than to the maximum available sentence.
  • The Fernando principles permit drug addiction to be treated as a mitigating factor in sentencing, though the Magistrate's remarks confirm that this does not operate as a full excuse for offending.
  • Where a sentencing court imposes partially cumulative sentences and makes a finding of special circumstances, the approach confirmed in R v Martin requires that the special circumstances adjustment be "carried through" consistently across the cumulative sentence structure.
  • Form 1 matters (offences taken into account without separate conviction) appropriately attach to the most serious principal charge and can increase the sentence imposed for that charge, but do not result in separate convictions or penalties.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) s 112(1) (break, enter and steal)
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5 and 21A

Cases:
- R v Bolter [2002] NSWCCA 435
- De Simoni v The Queen (1981) 147 CLR 383
- R v Doan (2000) 50 NSWLR
- R v Harris [2007] NSWCCA 130
- Hayes [1984] 1 NSWLR 740
- Jones (unreported, NSWCCA, 30 June 1994)
- R v Martin [2007] NSWCCA 34
- Nguyen [2007] NSWCCA 14
- R v Ryan (2003) 141 A Crim R 403
- Simpson & Newman (2004) A Crim R 316
- R v Stricke [2007] NSWCCA 179
- Wallace [2007] NSWCCA 63
- Watts [2007] NSWCCA 153
- Pearce v The Queen (1998) 194 CLR 610