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District Court 24 April 2009

R v Adrian MURRAY

[2009] NSWDC 407

Theft & property
CRIMINAL LAW SENTENCE PROSPECTS OF REHABILITATION OFFENCE UNSOPHISTICATED AND UNPLANNED OFFENCE COMMITTED IN COMPANY SIGNIFICANT RELEVANT PRIOR RECORD

Citation: R v Adrian MURRAY [2009] NSWDC 407
Court: District Court of New South Wales
Date: 24 April 2009
Judge(s): Cogswell SC DCJ

Background

The offender, a 23-year-old man, pleaded guilty to breaking and entering the grounds of a university campus in Dubbo after midnight, in company with two others. The group removed louvres from a window of a computer learning centre before being detected by a university employee and security personnel. No property was actually stolen. The offender was arrested shortly after fleeing the scene.

The offender had a significant prior criminal record in both New South Wales and Queensland, including multiple convictions for break and enter offences. Critically, at the time of this offence he was serving a suspended sentence imposed by a Queensland court in November 2006.

The sentencing court had before it two pre-sentence reports, a psychiatric report, and oral evidence from the offender's grandmother. Those materials painted a picture of a young man with a history of drug and alcohol abuse and mental health difficulties, but one who had more recently benefited from a stable and supportive family environment.

  • How serious was this particular instance of aggravated break, enter and steal in company, contrary to s 113(2) of the Crimes Act 1900?
  • What weight should be given to the two acknowledged aggravating factors: the offender's relevant prior record and the commission of the offence while on a suspended sentence?
  • What weight should be given to the offender's prospects of rehabilitation, given his changed personal circumstances?
  • Whether a wholly suspended sentence under s 12 of the Crimes (Sentencing Procedure) Act 1999 was appropriate, notwithstanding the aggravating factors.

Decision

The court placed the offence in the lower range of objective seriousness for break and enter offences. It accepted that the attempt was unsophisticated and not significantly planned in advance, that no property was stolen, and that the equipment inside would have presented a practical obstacle to any theft. The court declined, however, to characterise the offence as purely opportunistic, noting that the university was not on a direct route to the offender's intended destination.

The court identified two aggravating factors: the offender's prior record of property offences (which engaged the need for specific deterrence and public protection) and the fact that the offence was committed while the offender was on conditional liberty under a suspended Queensland sentence. The court described the latter as a breach of the trust placed in the offender by the Queensland court when it chose not to require him to serve his imprisonment in custody.

Despite those aggravating factors, the court gave significant weight to the offender's rehabilitation prospects. His grandmother had provided stable housing and support over the preceding 18 months, and the court found those prospects to be genuine. The court sentenced the offender on the agreed facts pursuant to the principle in R v Falls, declining to rely on an inconsistent account recorded in a pre-sentence report.

The court imposed a sentence of 21 months imprisonment, wholly suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999, conditional on the offender entering into a good behaviour bond for the same period. The court emphasised to the offender directly that breach of a suspended sentence bond carries a near-automatic consequence of full imprisonment.

Orders Made

  • The offender sentenced to 21 months imprisonment, wholly suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999
  • The offender required to enter into a good behaviour bond for 21 months as the condition of suspension

Key Takeaways

  • A sentencing court may place an aggravated break and enter offence in the lower range of objective seriousness where the attempt was unsophisticated, unplanned in any significant way, and no property was actually stolen.
  • Committing an offence while serving a suspended sentence from another jurisdiction constitutes an aggravating factor, because the offender was on conditional liberty granted on the trust that no further offences would be committed.
  • A relevant prior record for property offences, including multiple break and enter convictions, engages the sentencing objective of specific deterrence and the protection of the public, even where other mitigating factors are present.
  • Strong rehabilitation prospects, supported by stable family circumstances and demonstrated behavioural change in the period leading up to sentencing, can carry significant weight in determining the appropriate sentence, even alongside aggravating factors of this kind.
  • Where agreed facts and a pre-sentence report contain inconsistent accounts of an offence, the court must sentence on the agreed facts: R v Falls [2004] NSWCCA 335 confirms this approach.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 113(2) (aggravated break, enter and steal in company; maximum 14 years imprisonment)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9 (good behaviour bonds); s 12 (wholly suspended sentences)

Cases
- R v Falls [2004] NSWCCA 335 (sentencing must proceed on agreed facts where a pre-sentence report records an account inconsistent with those facts)