Citation: R v Peter James DAY [3] [2009] NSWDC 359
Court: District Court of New South Wales
Date: 12 June 2009
Judge(s): Berman SC DCJ
Background
The offender was convicted on 20 May 2009, following a four-week jury trial, of breaking and entering in company with intent to commit a serious indictable offence. Specifically, the jury found he had arranged for two men to intimidate his acquaintance's husband, SA. The jury acquitted the offender of the more serious charge of breaking and entering in company with intent to kidnap SA's wife, RM.
The offender had known RM through his mobile telephone retail business. He suffered from dyspraxia, a condition affecting speech and comprehension, and had a limited social network that left him vulnerable to manipulation. RM had drawn him into a series of escalating personal entanglements, including helping her leave her family home and later assisting her to travel to Jordan, where she married SA.
On 22 August 2006, the offender drove to RM and SA's home with two hired men and an employee, Ms Virginie Bond. The plan was to intimidate SA so that RM could leave voluntarily if she wished. When SA did not open the door, one of the two men threw a brick through a window and then retrieved a machete from the car, waving it through the broken window. That act constituted the breaking and entering. The two men did not enter the premises, and the group then departed.
Legal Issues
- Whether the objective seriousness of the offence warranted a sentence of full-time imprisonment
- The extent of the offender's awareness of, and responsibility for, the machete and the act of breaking and entering
- What weight to give to the offender's personal circumstances, including dyspraxia, limited prior custodial experience, and family hardship
- How to apply the principle of totality, given that the offender was being sentenced concurrently for other offences sentenced earlier the same day
- Whether special circumstances existed to justify a variation in the standard ratio between the non-parole period and the total sentence
Decision
The court accepted that the offender did not know the machete was in the car until one of the men returned to retrieve it after the group had already left the vehicle. Nevertheless, the court was satisfied, consistently with the jury's verdict, that the offender had contemplated as reasonably possible that if SA did not open the door, entry would be forced. The breaking and entering therefore fell within the scope of the joint criminal enterprise the offender had organised.
The court regarded the objective gravity of the conduct as significant. The behaviour of the two men caused substantial fear to SA and his neighbours, constituted a serious breach of the peace, and reflected highly culpable conduct on the offender's part. The court noted that the offender had committed this offence while awaiting sentencing for other matters, which it considered indicative of a poor attitude towards the law.
In mitigation, the court took into account the offender's dyspraxia and its role in making him susceptible to manipulation, the likelihood of protective custody conditions less favourable than the general prison population, his parents' medical conditions and the distress his imprisonment would cause them, and the fact that this was his first time in custody. However, the court found the hardship to the offender's parents was not exceptional and therefore could not be treated as a significant mitigating factor on its own.
The court found special circumstances warranting a departure from the standard non-parole period ratio, citing the need to accumulate this sentence on the earlier sentence imposed that day, the offender's dyspraxia, and his first-time custody status. Applying totality principles, the court structured the sentence to commence at the expiry of the non-parole period of the sentence imposed earlier the same morning.
Orders Made
- The offender is sentenced to imprisonment for a total term of two years
- Non-parole period of one year, commencing 20 November 2009 and expiring 19 November 2010
- The offender is to be released to parole on 19 November 2010
Key Takeaways
- A conviction for breaking and entering in company does not require that the offender personally committed the entry; it is sufficient that the act fell within the scope of a joint criminal enterprise the offender organised, or that the offender contemplated it as reasonably possible.
- Where an offender arranged and directed co-offenders but did not personally wield the weapon or breach the premises, the court may still sentence on the basis of full criminal responsibility for the resulting offence, calibrated to the precise scope of what the offender foresaw.
- The District Court confirmed that personal vulnerability to manipulation, including a diagnosed condition such as dyspraxia, can be relevant in mitigation without excusing conduct that was, objectively, significantly criminal.
- Committing an offence while awaiting sentence for other matters was treated as an aggravating feature reflecting poorly on the offender's attitude to the law, even where the offender was not technically on bail at the time.
- Special circumstances justifying a reduced non-parole period relative to the total sentence can arise from the cumulative effect of accumulation of sentences, a diagnosed disability, and first-time imprisonment, considered together.
Legislation and Cases Referenced
No specific legislation or cases were cited in the text of the judgment or the provided metadata. The court applied general sentencing principles, including totality, accumulation, objective gravity of offending, and special circumstances in the non-parole period ratio.