Citation: R v Spice, Richardson, Thompson & McGregor [2008] NSWDC 250
Court: District Court of New South Wales
Date: 7 November 2008
Judge(s): Hulme SC DCJ
Background
Four offenders were sentenced following guilty pleas in connection with two break-ins at the Wentworth Golf Club in Orange. The offences occurred on 30 July 2007 and 11 August 2007. One offender (Richardson) was employed as a bar attendant at the club; the others used that connection, along with coordinated planning and SMS communication, to execute the crimes.
On the first occasion, an alarm was triggered when the two male offenders broke in through the cool room roof, and they fled without taking anything. One female offender drove both men to the scene and waited to collect them; the other received one of the men after he made contact following the failed attempt. On the second attempt, access was gained through the roof and into the kitchen, where the safe was opened and $25,266.78 was stolen. The proceeds were divided among all four offenders.
The offenders were charged with varying combinations of break and enter with intent to steal (contrary to s 113(1) of the Crimes Act 1900), break, enter and steal (contrary to s 112(1)), and, in the case of Richardson, accessory after the fact to break and enter with intent. All four pleaded guilty in the Local Court and were committed for sentence to the District Court.
Legal Issues
- What sentences were appropriate given the objective seriousness of the offences, including the degree of planning and the financial loss caused?
- How should the court weigh subjective factors (rehabilitation, personal circumstances, criminal history) against the primacy of objective seriousness?
- What role did each offender's level of participation play in differentiating their sentences?
- Were special circumstances established to justify varying the statutory ratio between non-parole periods and the balance of term?
- Were sentences of periodic detention appropriate for the two offenders who played lesser roles (Richardson and McGregor)?
Decision
His Honour emphasised that objective seriousness must remain the primary consideration in sentencing for offences of this kind. The offences were planned, coordinated across two separate occasions, involved the use of an insider connection through Richardson's employment, and caused significant financial loss. The use of SMS messages to coordinate the burglary in real time was noted as an aggravating feature.
His Honour acknowledged a degree of conflict between the evidence given by the offenders about their respective roles, particularly between Spice and Thompson. Because all parties agreed that the court should confine itself to the agreed statement of facts and disregard evidence that touched on the offences themselves, His Honour proceeded on that basis. However, he expressed discomfort with this approach, noting that the court had plainly not heard the complete truth. Evidence given about personal circumstances was accepted; evidence going to minimisation of individual roles was disregarded.
Richardson and McGregor were treated as playing lesser roles, principally as drivers who transported the principal offenders to and from the scene. Both received sentences to be served by way of periodic detention, reflecting their personal circumstances and the nature of their participation. Spice and Thompson, as the persons who physically entered the premises, received full-time custodial sentences with non-parole periods, though backdated to their respective dates of arrest.
Special circumstances were found to exist for the relevant offenders, justifying a variation in the standard statutory ratio between the non-parole period and the balance of term. The court structured the sentences to allow for adequate parole supervision, particularly given the rehabilitation considerations applicable to some of the offenders.
Orders Made
Spice (Break and enter with intent; Break, enter and steal):
- Total sentence of 3 years with a non-parole period of 1 year 9 months.
Richardson (Accessory after break and enter with intent; Break, enter and steal):
- Accessory offence: non-parole period of 5 months, balance of 2 months, to be served by periodic detention commencing 15 November 2008.
- Break, enter and steal: non-parole period of 9 months, balance of 10 months, commencing 15 February 2009, to be served by periodic detention.
- Total sentence of 1 year 10 months with a non-parole component of 1 year.
Thompson (Break and enter with intent; Break, enter and steal):
- Total sentence of 3 years with a non-parole period of 1 year 9 months, backdated to 18 October 2007.
McGregor (Break and enter with intent; Break, enter and steal):
- Break and enter with intent: non-parole period of 9 months, balance of 3 months, periodic detention commencing 15 November 2008.
- Break, enter and steal: non-parole period of 9 months, balance of 9 months, commencing 15 February 2009, periodic detention.
- Total sentence of 1 year 9 months with a non-parole component of 1 year.
Key Takeaways
- Objective seriousness occupies a primary position in the sentencing exercise for break and enter offences, and subjective factors such as rehabilitation do not displace that primacy.
- Planning, coordination across multiple attempts, significant financial loss, and exploitation of an insider connection all operate as aggravating features capable of elevating the seriousness of commercial burglary offences.
- Where parties agree that the sentencing court should be confined to an agreed statement of facts and disregard conflicting offender evidence about individual roles, the court will proceed on that basis, though Hulme SC DCJ noted discomfort where it was apparent the full truth had not been told.
- Differential sentencing based on the nature and degree of each participant's involvement was applied: the two offenders who physically entered the premises received full-time custody, while the two drivers received periodic detention sentences reflecting their lesser roles and personal circumstances.
- Special circumstances justifying a departure from the standard non-parole to balance-of-term ratio can be found where rehabilitation considerations and the need for adequate post-release supervision are established on the evidence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 112(1), 113(1), 350
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases:
- Veen v The Queen (No 2) (1988) 164 CLR 465
- Pearce v The Queen (1998) 194 CLR 610
- R v Henry (1999) 46 NSWLR 346
- R v Ponfield (1999) 48 NSWLR 327
- R v Delaney (2003) 59 NSWLR 1
- R v McNaughton (2006) 66 NSWLR 566
- R v Cartwright (1989) 17 NSWLR 243
- R v Dodd (1991) 57 A Crim R 349
- R v Fowler (2003) 151 A Crim R 166
- R v Khamas (1999) 108 A Crim R 499
- R v Webb (2004) 149 A Crim R 167
- R v Campbell [1999] NSWCCA 76
- R v Thompson [2000] NSWCCA 362
- R v Perry [2000] NSWCCA 375
- R v Sullivan (2004) 41 MVR 250
- R v Youkhana [2004] NSWCCA 412
- R v Gordon (1994) 71 A Crim R 459
- Various unreported NSWCCA decisions (1992 to 1998)