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District Court 10 October 2008

R v Innes

[2008] NSWDC 260

Assault & violenceTheft & property
CRIMINAL LAW SENTENCE BREAK AND ENTER LARCENY DAMAGE PUBLIC FACILITY

Citation: R v Innes [2008] NSWDC 260
Court: District Court of New South Wales
Date: 10 October 2008
Judge(s): Knox SC DCJ

Background

In the early hours of 6 December 2005, three men drove two stolen vehicles through the foyer of Campbelltown Hospital in an attempt to rip out an ATM machine embedded in the wall. The raid caused over $105,000 in damage to the hospital, the ATM, and one of the stolen vehicles. The ATM was never successfully removed.

The offender, Brian Innes, was identified through a combination of DNA evidence linking a co-offender to the scene, witness testimony from his then-partner and her father, and his own admissions. He told his partner that "that was my first ATM and my last," and separately admitted to her father that he, along with associates known as "Popey" and McGee, had been involved and "had to do a runner."

Following a jury trial at the District Court at Campbelltown, Innes was convicted of breaking and entering a building (Campbelltown Hospital) in company with intent to commit larceny, contrary to section 113(2) of the Crimes Act 1900. The maximum penalty for that offence is 14 years imprisonment. The sentencing judgment dealt with the appropriate sentence, taking into account the offender's background, criminality, and the circumstances of the offence.

  • What sentence was appropriate for a break and enter in company at a public hospital, involving a ram raid on an ATM, in light of the offence's objective seriousness?
  • What weight should be given to the offender's prior criminal history, his drug and alcohol abuse, and his failure to accept responsibility?
  • How should the sentence be structured to account for time already spent in custody and sentences being served for other offences?

Decision

The court found the objective seriousness of the offence to be high. The break-in was premeditated, carried out at a hospital (a public facility providing essential community services), involved the use of stolen vehicles as battering rams, and occurred while hospital staff and potentially patients were present. The damage bill exceeded $105,000, and no restitution had been made or was likely.

The offender's refusal to accept responsibility for the offence was noted as a factor working against him in sentencing. His admissions to his former partner and her father were treated as evidence of guilt rather than as expressions of genuine remorse. The court found his background was marked by significant drug and alcohol abuse, which informed some of its approach to parole conditions.

The sentence was structured to run from 21 November 2006, following the expiration of the non-parole period for a separate firearms offence and after accounting for a contempt offence. The court described this starting date as reflecting a degree of leniency in the offender's favour.

Orders Made

  • The offender was convicted of breaking and entering a building in company with intent to commit larceny, contrary to s 113(2) of the Crimes Act 1900.
  • Sentenced to 5 years and 6 months imprisonment, commencing 21 November 2006 and expiring 20 May 2012.
  • Non-parole period of 3 years and 8 months, expiring 20 July 2010.
  • Parole recommended to be subject to conditions including: good behaviour; no approach to the former partner; notification of accommodation details to Probation and Parole; compliance with alcohol and drug treatment programs; and disclosure of associates to Probation and Parole.

Key Takeaways

  • A break and enter committed at a hospital in the middle of the night, using stolen vehicles as rams and causing over $105,000 in damage, was treated as objectively serious, warranting a substantial custodial term even absent a successful theft.
  • Verbal admissions made to civilian witnesses can carry significant evidential weight at trial, particularly where the admissions contain details consistent with independently verified facts about the offence.
  • The District Court treated the offender's continued denial of guilt, despite a jury conviction supported by strong evidence, as undermining any claim to mitigation based on remorse.
  • Where an offender is already serving sentences for other matters, a court may fix a commencement date for the new sentence that reflects an appropriate degree of accumulation or concurrency, with some leniency applied as a matter of sentencing discretion.
  • Premeditation and the targeting of a public facility providing essential community services were identified as aggravating features relevant to the sentence imposed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 113(2) (break and enter in company with intent)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- R v Guthrie [2002] NSWCCA 77
- R v Morris [2008] NSWCCA 115
- R v Ponfield (1999) 48 NSWLR 327
- Veen v R (No 2) [1988] 164 CLR 465
- R v De Simoni (1981) 147 CLR 383