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Local Court 15 July 2008

Police v VIMPANI

[2008] NSWLC 14

Theft & property
MULTIPLE OFFENDING BREAK ENTER AND STEAL CUMULATION OF SENTENCE BREACH OF CONDITIONAL LIBERTY

Citation: Police v Vimpani [2008] NSWLC 14
Court: Local Court of New South Wales (Albury)
Date: 15 July 2008
Judge(s): Magistrate G Lerve

Background

The offender faced sentencing across seven separate sets of charges spanning offences committed between May 2002 and late 2006. The charges included multiple counts of break, enter and steal, steal from the person, taking and driving a conveyance, fail to appear, goods in custody, and being carried in a stolen conveyance. The offences occurred across various locations in New South Wales, including Glenfield, Claymore, Tuross Head, and Finley.

Most of the matters only came before the court from October 2007 onwards, despite the earliest offences dating to 2002. The offender had spent several years at large, with warrants issued in his absence on a number of the matters.

Given the volume and complexity of the matters, Magistrate Lerve adjourned them from the list day to allow proper consideration, and delivered written reasons for sentence.

  • How to structure and cumulate sentences across a large number of separate offences committed over several years
  • Whether, and to what extent, guilty pleas entered years after the offences attracted a utilitarian discount
  • How to assess the seriousness of each individual offence across the relevant spectrum
  • What weight to give to breach of conditional liberty as an aggravating factor
  • How to treat evidence of rehabilitation efforts made by the offender prior to sentencing
  • Whether the totality principle (the requirement that the overall sentence not be crushing) should moderate the cumulated sentences

Decision

Magistrate Lerve worked through each set of charges in chronological order, assessing the objective seriousness of each offence individually before considering the cumulation of sentences. For the earliest matters, where pleas were entered some years after the offences and following a lengthy period at large, the court allowed only a 15% utilitarian discount rather than the full 25%. The full 25% discount was applied to matters where guilty pleas were entered promptly upon the offender's first or second court appearance.

The court placed each offence at a point on the relevant scale of seriousness. The residential break and enters were assessed at or around the mid-range. The commercial premises offence at the Tuross Head Country Club was assessed below the halfway mark, characterised as a crime of opportunity with minimal planning. A number of the more serious later offences, including those committed while the offender was on conditional liberty, were treated as more serious by reason of that aggravating feature.

Breach of conditional liberty (that is, offending while subject to bail or a community-based order) was identified as a significant aggravating factor in relation to the later offences. The court acknowledged the offender's efforts at rehabilitation in the period leading up to sentencing, including evidence of stable employment, and factored that into the assessment of prospects for rehabilitation.

Applying the totality principle, the court structured the sentences with a degree of concurrency to ensure the overall sentence was not disproportionate. Several minor charges were dealt with under section 10A of the Crimes (Sentencing Procedure) Act 1999, meaning a conviction was recorded but no further penalty was imposed. Fixed terms imposed for lesser matters were subsumed within longer non-parole periods running concurrently.

Orders Made

  • Steal from the Person (H14675968): Fixed term of 4 months imprisonment, 15 July to 14 November 2008
  • Fail to Appear (H14675968): Conviction recorded, no further penalty (s 10A)
  • Break Enter and Steal (H18808541): Fixed term of 6 months imprisonment, 15 July to 14 January 2009
  • Break Enter and Steal (H141799293): Fixed term of 6 months imprisonment, 15 July to 14 January 2009
  • Goods in Custody (H141799293): Conviction recorded, no further penalty (s 10A)
  • Break Enter and Steal (H29670130): Non-parole period of 9 months (15 September 2008 to 14 June 2009); balance of term 9 months (15 June 2009 to 14 March 2010); supervised parole
  • Break Enter and Steal (H33391687): Non-parole period of 9 months (15 September 2008 to 14 June 2009); balance of term 9 months (15 June 2009 to 14 March 2010); supervised parole
  • Take and Drive Conveyance (H33391687): Fixed term of 4 months, 15 September 2008 to 14 January 2009
  • Break Enter and Steal, Ambulance Station (H32376662, Seq 1): Non-parole period of 11 months (15 November 2008 to 14 October 2009); balance of term 9 months (15 October 2009 to 14 July 2010); supervised parole
  • Take and Drive Conveyance (H32376662, Seq 2): Fixed term of 4 months, 15 November 2008 to 14 March 2009
  • Break Enter and Steal, Pascoe residence (H32376662, Seq 3): Non-parole period of 9 months (15 November 2008 to 14 July 2009); balance of term 9 months (15 July 2009 to 14 April 2010); supervised parole
  • Take and Drive Conveyance (H30761803, Seq 1): Fixed term of 4 months, 15 September 2008 to 14 January 2009
  • Be Carried in Stolen Conveyance (H30761803, Seq 2): Conviction recorded, no further penalty (s 10A)
  • All fixed terms wholly subsumed by longer concurrent non-parole periods

Key Takeaways

  • Where a guilty plea is entered many years after an offence, and particularly where the offender was at large during that interval, a sentencing court may reduce the utilitarian discount below the standard 25%, on the basis that the practical benefit of the plea is diminished.
  • Breach of conditional liberty is treated as a meaningful aggravating factor that increases the objective seriousness of later offences within a sequence of multiple offending.
  • The totality principle requires a sentencing court to step back and assess whether cumulated sentences, viewed as a whole, are proportionate to the overall criminality. Structuring sentences with some concurrency is one recognised mechanism for achieving that balance.
  • Pre-sentence rehabilitation evidence, such as stable employment and changed circumstances, is a relevant mitigating consideration even where the offending history is extensive.
  • Under section 10A of the Crimes (Sentencing Procedure) Act 1999, a court may record a conviction without imposing any additional penalty, a tool the court applied here to several lesser charges where the custodial sentences already imposed were considered sufficient.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A

Cases:
- Pearce v The Queen (1998) 103 A Crim R 372
- R v Barlow [2008] NSWCCA 96
- R v Bolter [2002] NSWCCA 435
- R v Doan (2000) 50 NSWLR 115
- R v Dodd (1991) 57 A Crim R 349
- R v Gordon (1994) 71 A Crim R 459
- R v Harris [2007] NSWCCA 130
- R v Jones (unreported, NSWCCA, 30 June 1994)
- R v Kite [2008] NSWDC 7
- R v Merrin [2007] NSWCCA 255
- R v Nguyen [2007] NSWCCA 14
- R v Tolley [2004] NSWCCA 165
- R v Wallace [2006] NSWCCA 63
- R v Zamagias [2002] NSWCCA 17