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District Court 24 July 2009

R v Bruno PAMPUSA

[2009] NSWDC 240

Theft & property
CRIMINAL LAW SENTENCE PLEA OF GUILTY BREAK ENTER AND STEAK FINANCIAL DIFFICULTIES REMORSE

Citation: R v Bruno PAMPUSA [2009] NSWDC 240
Court: District Court of New South Wales
Date: 24 July 2009
Judge(s): Cogswell SC DCJ

Background

The offender, a 33-year-old man with a lengthy criminal history, pleaded guilty to one count of break, enter and steal under s 112(1)(a) of the Crimes Act 1900. Between 26 and 30 October 2008, he broke into a house in Bondi Junction and stole two backpacks, a jar of coins, an iPod and a passport from two Irish backpackers. Forensic evidence including fingerprints linked him to the offence.

At the time of sentencing, the offender was already in custody serving a sentence imposed by the Local Court for a similar offence. He had been formally charged with the present offence on 6 February 2009 while serving that existing sentence.

The central sentencing issue was how the new sentence should sit alongside the sentence already being served, given competing considerations: the offender's substantial criminal history on one hand, and evidence of meaningful personal change on the other.

  • Whether the sentence for the present offence should run concurrently, partially concurrently, or cumulatively with the existing sentence being served
  • What weight to give the offender's long criminal history of similar offending, including prior imprisonment
  • What weight to give mitigating factors, including the plea of guilty, remorse, financial hardship contributing to the offence, and evidence of genuine rehabilitation
  • What parole conditions, if any, should be imposed upon release

Decision

Cogswell SC DCJ acknowledged the significant personal changes in the offender's life. Evidence from a psychologist and a prison chaplain, along with the offender's own testimony, pointed to several positive developments: conversion to Christianity, a stable relationship and young child, severance of antisocial associations, reduced drug use, and a desire to engage in counselling and further education. The court accepted these as genuine mitigating factors.

At the same time, the court was required to reflect the seriousness of the offending, particularly given the offender's extensive record of similar crimes and the principle that the sentence must not be rendered effectively meaningless by being wholly concurrent with an existing term. The court referenced Veen v The Queen (No 2) in considering the relationship between criminal history and proportionate sentencing, noting that prior offending cannot increase the sentence beyond what is proportionate to the current offence, but remains a relevant consideration.

The court resolved the tension by commencing the new sentence on the date of sentencing rather than backdating it to align with the start of the existing sentence or postponing it to run entirely after the existing sentence expired. This approach produced a sentence that was neither fully concurrent nor fully cumulative, sitting between the two positions urged by each party.

The court also imposed parole conditions, noting that the offender had never received psychological counselling and had himself expressed a desire to speak with someone. Supervision by the Probation and Parole Service, including directions as to drug rehabilitation and counselling, was considered appropriate.

Orders Made

  • Total sentence of 3 years imprisonment, commencing 24 July 2009
  • Non-parole period of 2 years (earliest release date 23 July 2011)
  • Balance of term of 1 year
  • Upon release, the offender is to report to the nearest Probation and Parole Service office and submit to supervision
  • The offender is to comply with all reasonable recommendations and directions of the Probation and Parole Service, particularly regarding drug rehabilitation and counselling

Key Takeaways

  • The District Court declined to impose a fully concurrent or fully cumulative sentence where an offender was already in custody for similar offending, instead commencing the new sentence at the date of the sentencing hearing as a middle course.
  • A long criminal history of similar offences is a relevant sentencing consideration, but under the principle affirmed in Veen v The Queen (No 2), it cannot justify a sentence disproportionate to the gravity of the current offence.
  • Evidence of genuine rehabilitation, including stable relationships, reduced drug use, severed antisocial ties, and engagement with support networks, carried real mitigating weight even for an offender with an extensive prior record.
  • Financial hardship, including a family debt of approximately $12,000 incurred following a bereavement, was treated as a relevant contextual factor contributing to the offending, though it did not excuse it.
  • Parole conditions requiring supervision and engagement with drug rehabilitation and counselling were imposed where the sentencing court identified an unmet need for psychological support and the offender himself had expressed willingness to engage with it.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) s 112(1)(a) (break, enter and steal; maximum 14 years imprisonment)
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A (aggravating and mitigating factors)

Cases
- Veen v The Queen (No 2) (1988) 164 CLR 465 (High Court of Australia: limits on the use of criminal history in sentencing)