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District Court 31 December 2009

R v McKilllop

[2009] NSWDC 107

Theft & property
CRIMINAL LAW PARTICULAR OFFENCES OFFENCES AGAINST THE PERSON PROPERTY OFFENCES ROBBERY

Citation: R v McKillop [2009] NSWDC 107
Court: District Court of New South Wales
Date: Hearing 16 December 2008 (judgment date not stated)
Judge(s): Conlon SC DCJ

Background

The defendant, Jamie McKillop, pleaded guilty to fifteen counts of break and enter offences: nine counts of break, enter and steal (maximum 14 years each) and six counts of aggravated break, enter and steal (maximum 20 years each). He also requested that 139 further matters be taken into account on a Form 1 schedule. Those additional matters included 102 break, enter and steal offences, 25 counts of taking and driving a conveyance, and various receiving and goods in custody charges.

The offending spanned from September 2001 to October 2006 and was centred in the Wollongong and Lake Illawarra area. Police identified the defendant through DNA evidence recovered from crime scenes, including from a coke can, cigarette butts, a Krispy Kreme donut, and a juice bottle. A strike force was established in October 2006, and the defendant was arrested in November 2006 while undertaking weekend detention. A search of his home at Figtree resulted in the seizure of approximately 4,500 items of suspected stolen property.

The total value of property stolen across all offending exceeded $1.9 million. Many of the aggravated offences involved elderly victims who were home and asleep when the defendant entered their premises. In several instances, victims awoke during the burglary.

  • What was the appropriate total sentence for a large volume of serial break and enter offending, including both standard and aggravated categories?
  • How should the sentencing judge approach the aggregation and totality of the sentence across fifteen counts plus 139 Form 1 matters?
  • What weight should be given to the defendant's guilty plea, criminal history, and personal circumstances in fixing the non-parole period and additional term?
  • Did the special circumstances provisions of the Crimes (Sentencing Procedure) Act justify any adjustment to the ratio of non-parole period to additional term?

Decision

Conlon SC DCJ described the sentencing exercise as particularly difficult given the sheer volume and seriousness of the offending. The court structured the sentence in cascading, partially concurrent terms across the fifteen counts, grouping offences by category and seriousness. The aggravated offences involving victims who were present and vulnerable attracted the heaviest individual sentences.

The court gave credit for the defendant's guilty pleas, which avoided the need for a lengthy trial involving complex DNA evidence. However, the scale of the offending, the targeting of elderly and vulnerable victims in their homes, the sophisticated methods used to defeat alarms and security measures, and the total loss of more than $1.9 million all weighed heavily as objective factors of seriousness.

The 139 Form 1 matters were taken into account on the sentence for count 5, the count that attracted the longest individual term. The court imposed cascading non-parole periods and additional terms across the counts to produce a just and proportionate aggregate, consistent with the totality principle.

Orders Made

  • Non-parole period of 12 years commencing 19 November 2006, expiring 18 November 2018
  • Additional term of 5 years expiring 18 November 2023
  • Counts 6 and 7: non-parole period of 4 years each (commencing 19 November 2008) with additional terms of 2 years each
  • Counts 9, 10 and 11: non-parole period of 4 years each (commencing 19 November 2010) with additional terms of 2 years each
  • Counts 8, 12, 13, 14 and 15: non-parole period of 3 years each (commencing 19 November 2012) with additional terms of 3 years each
  • Count 5: non-parole period of 5 years (commencing 19 November 2013, expiring 18 November 2018) and additional term of 5 years expiring 18 November 2023, incorporating the 139 Form 1 matters
  • Back-up charges on the section 166 certificate withdrawn and dismissed
  • All property in police custody forfeited to the Crown

Key Takeaways

  • The District Court applied a cascading, partially concurrent sentence structure to achieve proportionality across a very large number of offences, consistent with the totality principle.
  • Where an offender is linked to prolific residential burglaries through DNA evidence, the combination of volume, method, and victim vulnerability all bear on the objective seriousness of the offending.
  • Aggravated break and enter offences, where victims are present in the home during the intrusion, attract significantly heavier sentences than standard break and enter, particularly when those victims are elderly and living alone.
  • Form 1 matters, even in large numbers, are taken into account on an existing sentence rather than generating separate penalties, though they may influence which count bears the heaviest individual sentence.
  • A guilty plea retains utilitarian value even in cases built on strong forensic evidence, and the court recognised that credit as part of the sentencing calculation.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act (NSW), including ss 9, 12, 166
- Crimes Act 1900 (NSW), ss 112(1) and 112(2)

Cases:
- R v Hammoud [2000] 118 A Crim R 66
- R v Harris [2007] NSWCCA 130
- R v Huynh [2005] NSWCCA 220
- Marshall v R [2007] NSWCCR 24
- R v Bavadra [2000] 115 A Crim R 152
- Pierce v R [1998] 194 CLR 610
- R v Ponfield [1999] 48 NSWLR 327