Citation: R v Jason Wayne Nicholas [2009] NSWDC 365
Court: District Court of New South Wales
Date: 11 December 2009
Judge(s): Berman SC DCJ
Background
The offender had appeared before the same judge in 2006, pleading guilty to serious offences. He was remanded under section 11 of the relevant legislation and performed well, leading the court to impose suspended sentences in February 2007. He was warned clearly at that time that further offending would result in full-time imprisonment.
Despite that warning, the offender breached the conditions of his bond, failed to report to Probation and Parole, used drugs, and committed further offences. The most serious new offences occurred on 24 March 2009, when he entered an occupied home in Centennial Park and detained the female occupant while attempting to force her to open a safe, grabbing her handbag on the way out. He had also committed a break, enter and steal offence on 10 November 2008.
The offender is an Aboriginal man with a diagnosed mental illness of paranoid schizophrenia and a tragic personal background. He was represented by Aboriginal Legal Services. The matter came before the court for sentencing on the breach of the suspended sentences and the new offences.
Legal Issues
- Whether the suspended sentences imposed in February 2007 should be revoked following the offender's breach of the bond
- How to structure an accumulation of sentences across the revived suspended sentences and the three new offences
- Whether the standard non-parole period applicable to aggravated break, enter and steal applied, given the guilty plea and the need for accumulation
- What weight to give the offender's paranoid schizophrenia and personal background in moderating the sentence
- Whether special circumstances existed to justify a reduction in the non-parole period below the statutory ratio
Decision
The court revoked the suspension of the February 2007 sentences, activating them as full-time imprisonment from 14 May 2009. The judge emphasised that the offender had been given a clear warning, had initially demonstrated capacity for rehabilitation, but had subsequently breached the bond in multiple respects and reoffended seriously.
On the new offences, the court acknowledged substantial overlap between the taking and detaining offence and the aggravated break, enter and steal. Nonetheless, the judge treated the detention of the victim as a distinct and serious matter, noting that the victim was struck twice, pushed towards a bedroom, feared rape, and was subjected to explicit threats of violence. The emotional and psychological harm to the victim was treated as significant.
Regarding the standard non-parole period for aggravated break, enter and steal (which carries a maximum of 20 years and a standard non-parole period of 5 years), the court found it was not of direct application because of the guilty plea and the necessity of accumulation. However, the judge noted that Parliament's intention in setting that standard was to increase sentences for such offences, and this informed the approach taken.
The court found special circumstances, reducing the effective non-parole period below the default ratio. The judge attributed reduced weight to general deterrence given the offender's mental illness, while affirming that personal deterrence and community protection remained relevant. All sentences were reduced by 25 percent to reflect the offender's early guilty pleas.
Orders Made
- Suspended sentences imposed on 23 February 2007 revoked; those sentences to be served as full-time imprisonment commencing 14 May 2009 (fixed terms)
- Break, enter and steal (10 November 2008): fixed term of 2 years commencing 14 May 2010
- Taking and detaining for an advantage: fixed term of 3 years commencing 14 May 2011
- Aggravated stealing and breaking out: non-parole period of 2 years and 6 months commencing 14 May 2012, expiring 13 November 2014; head sentence of 6 years
- Overall sentence: non-parole period of 5 years and 6 months; head sentence of 9 years
- Eligible for release to parole on 13 November 2014
Key Takeaways
- A standard non-parole period is not of direct application where the offender has pleaded guilty and sentences must be accumulated, but it nevertheless signals a legislative expectation that sentences for the relevant offence category should be meaningful and substantial.
- Where an offender breaches a suspended sentence after receiving an explicit judicial warning, the court treated revocation as the necessary consequence, particularly where further serious offending had occurred.
- Paranoid schizophrenia and a difficult personal background can reduce the weight given to general deterrence, but the District Court here found they did not displace the need for personal deterrence and community protection, nor the requirement for a lengthy non-parole period given the objective gravity of the conduct.
- A finding of special circumstances justified reducing the effective non-parole period below the statutory default, in recognition of the offender's demonstrated (if interrupted) capacity for rehabilitation and the need to structure supervised reintegration.
- Early guilty pleas attracted a 25 percent sentence reduction across all new offences, applied even within a heavily accumulated sentencing structure.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW): offences of break, enter and steal; aggravated break, enter and steal (standard non-parole period of 5 years; maximum 20 years); taking or detaining a person with intent to obtain an advantage
- Crimes (Sentencing Procedure) Act 1999 (NSW): s 11 (remand for rehabilitation assessment); s 12 (suspended sentences); standard non-parole period provisions; special circumstances
Cases cited: None cited in the text provided.