Citation: R v Justin Alexander Croese [2009] NSWDC 228
Court: District Court of New South Wales
Date: 7 August 2009
Judge(s): Cogswell SC DCJ
Background
The offender, a young man with a history of drug addiction from an early age, was sentenced for three separate break and enter offences committed in 2007 and 2008 in Sydney's lower north shore and northern suburbs. His early life was marked by family separation, disruption, and abuse, and his offending was driven by drug addiction. By the time of sentencing, he had been reunited with his family and had been drug-free for some time.
The three offences were: a break and enter with steal at a Wahroonga residence (7 February 2007), an aggravated break and enter with intent at a second Wahroonga property where the elderly occupant was home at the time (4 May 2007), and an aggravated break, enter and steal in company at a Mosman home (13 February 2008). The third offence was the most serious, involving a co-offender and the theft of substantial personal property including jewellery, electronics, and sentimental items. Additional offences, including stolen vehicle matters and further break and enters, were taken into account on two Form 1 documents (a procedural mechanism allowing related, uncharged offences to be considered at sentencing without separate conviction).
The offender pleaded guilty at the earliest opportunity and had been in custody since 5 December 2008.
Legal Issues
- Whether the standard non-parole period of five years under the Crimes (Sentencing Procedure) Act 1999 applied to the most serious offence of aggravated break, enter and steal in company, and whether this case fell within an exception to that benchmark
- How to weigh the offender's early guilty pleas, prior criminal record, and offending while on bail against his genuine prospects of rehabilitation
- How to structure the overall sentence across three counts to reflect totality (the principle that the combined sentence should be proportionate to the overall criminality) while appropriately punishing each offence
Decision
Cogswell SC DCJ identified the central tension as one between the need to impose meaningful punishment for serious property offences and the need to encourage what appeared to be genuine rehabilitation. The court noted that break and enter offences cause significant distress to victims, and that courts have consistently emphasised the importance of substantial sentences for such conduct.
On the standard non-parole period for the aggravated break, enter and steal in company charge, the court found that this case did fall below the mid-range of objective seriousness, making it an appropriate case to depart from the five-year benchmark. The court took into account the early guilty plea, the offender's background, his drug addiction as the driver of the offending, and his recent and apparently genuine steps toward rehabilitation including reunification with his family.
The court acknowledged that the offender's prior record and the fact that the February 2008 offence was committed while he was on bail were aggravating factors under the Crimes (Sentencing Procedure) Act 1999. These factors weighed against leniency, but the court found they were counterbalanced in part by the offender's rehabilitation prospects and his cooperation with the justice process.
The court also recommended that the Parole Authority, when considering release, take into account the pre-sentence report's recommendations, including participation in drug and alcohol programs, urinalysis, employment referrals, and supervision arrangements.
Orders Made
- Count 2 (break and enter with steal, 7 February 2007, taking into account Form 1): fixed term of 18 months commencing 5 December 2008, expiring 4 June 2010
- Count 1 (aggravated break and enter with intent, 4 May 2007, taking into account Form 1): fixed term of 2 years commencing 5 January 2009, expiring 4 January 2011
- Count 3 (aggravated break, enter and steal in company, 13 February 2008): non-parole period of 2 years and 6 months commencing 5 March 2009, expiring 4 September 2011; balance of term of 2 years and 6 months commencing 5 September 2011, expiring 4 March 2014
- The court recommended the Parole Authority consider the pre-sentence report recommendations, including drug and alcohol programs, reporting conditions, urinalysis, and employment and accommodation support
Key Takeaways
- The District Court confirmed that aggravated break and enter offences carry a standard non-parole period of five years under the Crimes (Sentencing Procedure) Act 1999, but found this case fell below the mid-range of objective seriousness, justifying a departure from that benchmark.
- A combination of factors, including an early guilty plea, drug-driven offending, a difficult personal history, and demonstrated recent rehabilitation, can collectively support a sentence below the standard non-parole period even where aggravating factors such as a prior record and bail-time offending are also present.
- Committing an offence while on bail is a statutory aggravating factor under s 21A(3)(j) of the Crimes (Sentencing Procedure) Act 1999, and the court treated it as a weighty consideration alongside the offender's criminal history.
- Form 1 procedure allows a sentencing court to take into account additional related offences without recording separate convictions for them, affecting the overall sentence for the principal offence.
- Where an overall sentence exceeds three years, the court does not itself fix the non-parole period without reference to the Parole Authority, and the sentencing court may make recommendations to that body about conditions and programs relevant to the offender's release.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW): ss 112(1), 112(2), 113(2), 154A(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW): ss 5, 21A(3)(h), 21A(3)(i), 23, 32, 54B
Cases:
- SZ v The Queen (2007) 168 A Crim R 249