Citation: R v Paul Henderson [2008] NSWDC 363
Court: District Court of New South Wales
Date: 17 March 2008
Judge(s): Cogswell SC DCJ
Background
The offender was sentenced for two offences of aggravated break, enter and commit a serious indictable offence (stealing), committed on 6 October 2006 and 30 October 2006 at residential properties in Werrington. On both occasions, the offender entered occupied homes through back doors in the early hours of the morning while the occupants and their children were asleep, stealing electronic goods and other personal items. The offender acknowledged committing both offences to fund a significant drug habit.
The offender was not arrested until 2 March 2007, following a police pursuit that led to four additional charges, which were dealt with on a Form 1 document accompanying one of the principal offences. He had a prior criminal record including offences of malicious wounding and common assault, and at the time of the break-ins he was subject to a good behaviour bond imposed by the Local Court.
Two issues dominated the sentencing exercise: the objective seriousness of the offences within the applicable range, and the offender's prospects of rehabilitation and re-offending.
Legal Issues
- Where the offences sat on the spectrum of objective seriousness for aggravated break, enter and steal
- The weight to be given to the offender's personal circumstances, including multiple diagnosed psychiatric disorders, significant drug dependency, and a disrupted personal history
- Whether special circumstances existed justifying a departure from the standard one-third relationship between the non-parole period and the total sentence
- How the Form 1 offences should be reflected in the overall sentence
- Whether the offender's rehabilitation prospects and moderate re-offending risk warranted a longer than usual period on parole supervision
Decision
The court assessed the offences as falling in the lower range of objective seriousness. Several factors pointed in that direction: no weapon was used, there was no wanton destruction of property, the planning involved was limited, the property stolen was not of substantial value, and the offences were committed under the influence of drugs rather than through cold calculation. The presence of occupants in both homes and the offender's breach of a good behaviour bond were aggravating features.
The court considered the offender's personal history at length. A pre-sentence report and a psychological report detailed diagnoses of Asperger's Syndrome, obsessive compulsive disorder, conduct disorder, and schizophrenia. The offender had a severely disrupted upbringing, left school at approximately thirteen or fourteen, had persistent homelessness, and had developed a serious amphetamine habit by his mid-teens. The court acknowledged these matters as relevant to moral culpability while also noting the offender had not yet accessed drug or alcohol services despite over a year on remand.
On rehabilitation, the court found there were reasonable prospects, informed by the offender's youth (he had recently turned twenty-two), his relationship with a partner and young child, some demonstrated victim empathy, and the fact that his psychiatric conditions were now being treated with medication. The court assessed the risk of re-offending as moderate rather than high.
The court found special circumstances existed, principally because of the need for an extended period of supervised parole to support the offender's rehabilitation, his psychiatric needs, and his limited capacity to manage independently. This justified extending the balance of term beyond the standard one-third of the non-parole period.
Orders Made
- For the offence of 6 October 2006: non-parole period of 1 year 9 months, balance of term 1 year 9 months
- For the offence of 30 October 2006: non-parole period of 1 year 3 months, balance of term 1 year 3 months
- Sentences were partially accumulated (staggered), with the effective non-parole period totalling 2 years
- Total sentence: 3 years 6 months, commencing 2 March 2007 and expiring 1 December 2010
- Earliest parole eligibility date: 1 March 2009
- The pre-sentence report and psychological report directed to accompany the offender in custody and be made available to the Parole Authority
Key Takeaways
- The District Court placed these aggravated break and enter offences in the lower range of objective seriousness, citing the absence of weapons, limited planning, no wanton destruction, and the drug-influenced state of the offender as relevant mitigating considerations.
- Multiple diagnosed psychiatric disorders, including schizophrenia and Asperger's Syndrome, were treated as relevant to the offender's moral culpability and to the sentencing regime most likely to support rehabilitation.
- Special circumstances were established on the basis that a longer supervisory period on parole was necessary, given the offender's psychiatric needs, drug dependency, and limited independent coping capacity, justifying a balance of term exceeding the standard one-third.
- Breach of a good behaviour bond at the time of the offences remained an aggravating factor, notwithstanding the broader mitigating circumstances in the offender's personal history.
- Directing copies of the pre-sentence and psychological reports to accompany the offender and be placed before the Parole Authority reflected the court's view that those reports would be material to the conditions ultimately set for supervised release.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 9, 32
Cases:
- Regina v Marshall [2007] NSWCCA 24