Citation: R v Nicholls, David [2008] NSWDC 123
Court: District Court of New South Wales
Date: 3 April 2008
Judge(s): Nicholson SC DCJ
Background
The victim, a numismatist, owned one of the most significant coin collections west of the Blue Mountains, stored in a heavy wall safe at his Brewarrina home. He left town in early July 2007, leaving a neighbour to check on the property. Between the afternoon of 5 July and the morning of 6 July, four offenders, two juveniles and two adults, broke into the home by smashing a kitchen window, disabled the alarm, and proceeded to ransack the premises.
The offender, David Nicholls, was eighteen years old at the time. His role was more limited than the other participants: he entered the premises, remained for approximately five minutes, and left carrying an esky loaded with stolen items, which he transported to a nearby property in Culgoa Street. The other adult offenders, by contrast, removed the safe, a motorbike, and other goods, later forcing open the safe at the Culgoa Street property.
The total property loss to the victim was approximately $125,000. This included a rare pre-decimal coin and banknote collection, antique coins, war service medals belonging to the victim's father and grandfather, a motorbike, and various other household items. Some coins were later recovered and returned to the victim.
Legal Issues
- What was the appropriate assessment of the objective seriousness of the offending, given the offender's more limited role compared to his co-offenders?
- What weight should be given to the aggravating features of the offence, including planning, the extended operation across two sites, the duration of the intrusion, damage caused, and the scale of the loss?
- How should the court balance the offender's subjective circumstances, particularly his youth and rehabilitation prospects, against the need for community protection and deterrence?
- Whether a suspended sentence under section 12(3) of the Crimes (Sentencing Procedure) Act 1999 was appropriate in the circumstances, rather than full-time custody.
Decision
The court identified several significant aggravating features. The offence involved planning, extended to a second site (the Culgoa Street property), took place while the owner was absent for multiple days, involved a lengthy period of occupation of the premises, caused substantial damage through ransacking, and resulted in a loss of approximately $125,000. The court rejected the offender's account that he was unaware of the nature of the items he was carrying, finding instead that he was tasked with removing the esky and its contents as part of a coordinated operation.
Despite accepting that the offender's role was less culpable than that of the adult co-offenders who removed and cracked the safe, the court was satisfied that he was a knowing and active participant. The court also noted serious reservations about his claim that he had not seen the safe, given that some of the safe's contents were found at the same location as the esky he removed.
On the subjective side, the court placed significant weight on the offender's youth, his guilty plea in both the Local Court and on indictment, and what it regarded as genuine rehabilitation prospects. The offender was in employment at the time of sentencing, and the court expressed confidence in his capacity to comply with conditions without formal supervision.
Weighing all factors, the court determined that a sentence of imprisonment, suspended on condition of a good behaviour bond, was appropriate. The court concluded that full-time custody was not necessary to meet the purposes of sentencing in this case, given the offender's age and the trajectory of his conduct since the offence.
Orders Made
- The offender was convicted of aggravated break, enter and steal (in company).
- A sentence of 13 months and 15 days imprisonment was imposed.
- The sentence was suspended pursuant to section 12(3) of the Crimes (Sentencing Procedure) Act 1999, conditional upon the offender entering a good behaviour bond for the same period.
- Bond conditions included: good behaviour, provision of current address to the court, and an obligation to answer any call-up in the event of an alleged breach.
- No supervision order was imposed.
Key Takeaways
- The District Court confirmed that a limited or peripheral role within a group offence does not insulate an offender from significant sentencing weight being placed on the collective planning and impact of the enterprise, particularly where the offender's participation was knowing and purposeful.
- Aggravating factors such as pre-planning, use of a secondary site, the owner's absence, extended duration inside the premises, and the scale of property damage all contributed to elevating the objective seriousness of a residential break and enter, even where the individual offender's physical role was circumscribed.
- Youth, a guilty plea at an early stage, and credible rehabilitation prospects can, in combination, support a suspended sentence even for an objectively serious property offence.
- A sentencing court is not bound by agreed facts tendered by the parties; those facts limit the material available but do not displace the judge's independent fact-finding responsibility.
- Where an offender's account is inconsistent with the physical evidence, a court may reject that account and draw inferences about the true scope of the offender's participation.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12(3)
Cases:
- Gladue v The Queen [1999] 1 SCR 688
- R v Rushby [1977] NSWLR 597
- R v Hayes [1984] 1 NSWLR 740
- R v Cuthbert [1967] 2 NSWR 329
- Brewster [1998] 1 CAR 220
- R v Lovelock (1978) 33 FLR 132
- R v Way (2004) 60 NSWLR 168
- R v Huynh [2005] NSWCCA 220