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District Court 3 November 2009

R v Mark Andrew HUGHES

[2009] NSWDC 404

DrugsTheft & property
CRIMINAL LAW SENTENCE FORMS 1 TAKEN INTO ACCOUNT SERIOUS DRUG ADDICTION PLEA OF GUILTY AT EARLIEST OPPORTUNITY EVIDENCE OF GENUINE REMORSE

Citation: R v Mark Andrew HUGHES [2009] NSWDC 404
Court: District Court of New South Wales
Date: 3 November 2009
Judge(s): Cogswell SC DCJ

Background

The offender was a long-term drug user whose addiction to methamphetamine ("ice") escalated severely in 2008. He lost stable employment he had held for over a decade, and his daily drug habit cost more than $400. To fund it, he embarked on a sustained series of break-ins over approximately six weeks between October and November 2008.

The offending spanned commercial premises, warehouses, and private homes across the Sydney region. It involved forcing entry, ransacking properties, destroying alarms and infrastructure, and stealing tens of thousands of dollars worth of goods. The most serious incident occurred on 11 November 2008, when the offender broke into a private home at Croydon and physically confronted the homeowner, a clergyman who returned mid-burglary.

The offender pleaded guilty at the earliest opportunity. He appeared before the District Court for sentencing on six charges, with a further fourteen offences taken into account by way of Forms 1 (a procedural mechanism allowing additional offences to be considered in sentencing without separate conviction).

  • What sentence was appropriate for six charges of aggravated break enter and steal, break enter and steal, and destroying property, taking into account the Forms 1 offences?
  • How should the court weigh the standard non-parole period of five years for aggravated break enter and steal?
  • What weight should be given to mitigating factors including serious drug addiction, an early guilty plea, and evidence of genuine remorse?
  • How should the principle of totality apply when structuring cumulative and concurrent sentences across multiple offences?

Decision

Cogswell SC DCJ identified the most serious charge as the aggravated break enter and steal at Croydon on 11 November 2008. That offence carries a maximum of 20 years' imprisonment and a standard non-parole period of five years. The offender had physically confronted the homeowner during the burglary, wielding what appeared to be wire cutters, and a struggle ensued. Thirteen further offences were taken into account on the Form 1 attached to that charge.

The court acknowledged several mitigating factors. The offender's ice addiction was severe and directly connected to the offending. He pleaded guilty at the earliest opportunity, had held lawful employment for most of his adult life, and demonstrated what the court accepted as genuine remorse. The court applied a discount to the sentence to reflect the utilitarian value of the early plea.

At the same time, the court emphasised the general deterrence imperative for break enter and steal offences. The court cited Court of Criminal Appeal authority confirming that such offending causes grave community concern, imposes real costs on householders, and warrants meaningful custodial penalties. The offender had also committed these offences while on conditional liberty, which was an aggravating factor.

Applying the totality principle to structure the individual sentences, the court arrived at an overall sentence of 8 years and 5 months, with a non-parole period of 5 years and 5 months. The sentence was backdated by five days to 1 December 2008 to account for time already spent in custody.

Orders Made

  • Overall sentence of 8 years and 5 months imposed, commencing 1 December 2008 and expiring 30 April 2017.
  • Non-parole period of 5 years and 5 months, with the earliest parole eligibility date of 30 April 2014.
  • Fourteen additional offences taken into account via Forms 1 under s 32 of the Crimes (Sentencing Procedure) Act 1999.
  • Two s 166 certificates under the Criminal Procedure Act 1986 noted, with the relevant offences already taken into account through the Forms 1 process.

Key Takeaways

  • The District Court confirmed that general deterrence carries significant weight in sentencing for break enter and steal offences, consistent with Court of Criminal Appeal authority describing such offending as a cause of "grave disquiet" in the community.
  • A serious and causally connected drug addiction does not neutralise the need for a substantial custodial sentence, but may be accepted as a mitigating factor going to moral culpability.
  • An early guilty plea attracted a meaningful discount, though the extent of that discount was moderated by the gravity and volume of the offending.
  • Offending while on conditional liberty is an aggravating factor under the sentencing framework and weighed against the offender in the overall assessment.
  • Where multiple charges are sentenced together, the totality principle requires the court to structure cumulative and concurrent terms so that the overall sentence reflects the full criminality without becoming crushing or disproportionate.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 32, 54B
- Crimes Act 1900 (NSW), ss 112(1)(a), 195(1)(a)
- Criminal Procedure Act 1986 (NSW), s 166

Cases:
- R v Scott [1999] NSWCCA 434
- Maher [2004] NSWCCA 177 (cited in judgment)