Citation: R v Joshua Stephen Tate [2008] NSWDC 331
Court: District Court of New South Wales
Date: 17 December 2008
Judge(s): Berman SC DCJ
Background
The offender, a young man who was employed at the time, committed a series of break, enter and steal offences in and around Scone, New South Wales in October 2006. He acted in company with two other men throughout, and the circumstances of being "in company" constituted the aggravating feature for each offence. Targets included the Scone Race Club, the Scone TAFE (broken into twice), the Scone Soccer Club, a storage container, and the local Target store.
The combined value of property stolen across all offences exceeded $29,000, with additional damage costs running to several thousand dollars more. Most stolen property was recovered from the offender's premises when police attended on 25 October 2006.
The offender appeared for sentence on two counts of aggravated break, enter and steal on the indictment, with a further four similar matters listed on a Form 1 to be taken into account on sentencing (a procedure allowing a court to consider additional offences without entering separate convictions on them). He had initially misled police, providing a false alibi, before ultimately pleading guilty.
Legal Issues
- What was the appropriate sentence for two counts of aggravated break, enter and steal in company, taking into account the Form 1 matters?
- How should the standard non-parole period of five years for aggravated break, enter and steal inform the sentence?
- What discount was appropriate for the guilty plea, given it was not entered at the first opportunity but was also not a late plea?
- What weight should be given to mitigating factors including the offender's employment, character references, and bail conditions?
Decision
Berman SC DCJ noted that aggravated break, enter and steal carries a statutory standard non-parole period of five years. Although a guilty plea meant the standard non-parole period did not apply directly, it remained an important guidepost. The court observed that courts have long emphasised the seriousness of these offences and the broader community harm they cause.
The court assessed the objective gravity of both counts as not well below the mid-range. Relevant factors included the quantity and value of property stolen, the repeat entry into the Scone TAFE, the impact on the community through the theft of educational equipment, and the number of separate offending episodes captured by the Form 1.
On mitigation, the court accepted that the Race Club offence was not pre-planned, that the offender was in employment at the time, and that character references spoke in his favour. The guilty plea attracted a nine-month discount from the overall sentence, reflecting that it was entered after attempts to mislead police had failed but was not entered at the last moment.
Because the Form 1 matters were taken into account on Count 1, that count attracted a longer sentence than Count 2. The court also gave minor weight to the onerous bail conditions (daily reporting and a curfew) the offender had complied with prior to custody, consistent with some authority suggesting such conditions may be considered in sentencing.
Orders Made
- Count 1: imprisonment with a non-parole period of 18 months commencing 26 September 2008, with an overall sentence of 3 years.
- Count 2: imprisonment with a non-parole period of 1 year commencing 26 September 2009, with an overall sentence of 2 years and 3 months.
- Effective overall sentence: 2 years imprisonment with a non-parole period of 3 years and 3 months.
Key Takeaways
- The District Court confirmed that the five-year standard non-parole period for aggravated break, enter and steal serves as a significant sentencing guidepost even where a guilty plea has been entered.
- A guilty plea that follows attempts to mislead police and is not entered at the first available opportunity will still attract a discount, though a reduced one reflecting the circumstances in which it was made.
- Form 1 offences directly increase the sentence on the count to which they are attached, reflecting the need for retribution and personal deterrence where an offender has committed multiple similar acts.
- Community-wide harm, such as the theft of educational equipment from a TAFE used by local students, is a relevant consideration in assessing objective seriousness beyond the direct financial loss to the premises owner.
- Onerous bail conditions, such as daily reporting and a curfew, may be accorded minor weight in sentencing, though the court treated them as just one of a range of factors in the overall assessment.
Legislation and Cases Referenced
Cases:
- R v Ponfield (1999) 48 NSWLR 327 (guideline judgment on break, enter and steal offences, identifying relevant factors including repeat entries to the same premises)
Legislation:
- The standard non-parole period provisions applicable to aggravated break, enter and steal (as in force under New South Wales sentencing legislation at the time; specific Act not cited in the judgment)