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District Court 21 August 2009

R v TREGONNING

[2009] NSWDC 430

DrugsTheft & property
CRIMINAL LAW SENTENCE AGGRAVATED BREAK, ENTER AND STEAL BREACH OF PAROLE MENTAL ILLNESS

Citation: R v Tregonning [2009] NSWDC 430
Court: District Court of New South Wales
Date: 21 August 2009
Judge(s): Berman SC DCJ

Background

The offender pleaded guilty in the Local Court to aggravated break, enter and steal. She had been released on parole only eleven days before committing the offence, having already breached an earlier parole period within two months of her non-parole period expiring in October 2007.

The offending arose from the offender's drug addiction. After being evicted from a halfway house for drug use, she became homeless. She encountered another drug user who broke into a residential apartment; she then joined him in removing property. The apartment's owner returned home, found both offenders in his lounge room, and gave chase. The offender was caught. Property recovered from her included watches, coins, a mobile phone, headphones, and a bank card.

The offender had an extensively documented history of hardship, including childhood sexual assault, the death of a partner and a sister, a severely fractured family life, and long-term addiction to heroin and amphetamines. A psychiatric report from Dr Wilcox confirmed the existence of a mental illness, which the court accepted was connected to her drug use and offending pattern.

  • What sentence was appropriate for aggravated break, enter and steal, having regard to the standard non-parole period of five years as a guidepost?
  • How should the offender's mental illness, drug addiction, and traumatic background affect the weight given to general deterrence and personal deterrence?
  • What discount applied for the utilitarian value of the guilty plea?
  • How should the offender's parole status at the time of the offence, and her criminal history, be treated in the sentencing exercise?

Decision

The court assessed the objective seriousness of the offence as below the mid-range for this offence type. There was no evidence of internal damage or ransacking, the premises were initially unoccupied, and the quantity of property taken was not significant. The offender's own involvement appeared to be spontaneous rather than planned, though she joined in without hesitation once she understood what was occurring.

Berman SC DCJ accepted that the offender's mental illness, in combination with her drug addiction, warranted a reduction in the weight given to general deterrence. However, his Honour rejected a submission that personal deterrence should also be substantially discounted. Even accounting for the offender's reduced responsiveness to the prospect of imprisonment, personal deterrence remained a significant sentencing purpose.

The court treated the offender's repeated parole breaches and her criminal history as demonstrating a continuing disregard for the law. It also acknowledged the broader community harm caused by break and enter offences, noting their frequency and the burden they place on law-abiding members of the community. The prospects of rehabilitation were assessed as poor.

A 25 per cent discount was applied to reflect the utilitarian value of the guilty plea. The court dated the sentence from 23 February 2009 as a matter of discretion, noting that the offender had been in continuous custody from that date, even though part of that period related to the earlier offending.

Orders Made

  • The offender was sentenced to imprisonment with a non-parole period of two and a half years, commencing 23 February 2009 and expiring 22 August 2011.
  • A head sentence of five years was imposed.
  • The court made a strong recommendation that upon release to parole, the offender be supervised closely and intensively by the Probation and Parole Service.

Key Takeaways

  • The District Court confirmed that the standard non-parole period for aggravated break, enter and steal operates as a guidepost rather than a mandatory minimum, and that a guilty plea removes it from direct application while leaving it relevant to the sentencing assessment.
  • Where an offender's mental illness is connected to drug use and the offending itself, reduced weight to general deterrence may be warranted, but this does not automatically diminish the significance of personal deterrence.
  • A 25 per cent discount for the utilitarian value of a guilty plea entered in the Local Court was applied in calculating the appropriate sentence.
  • Repeated parole breaches within short periods of release constituted significant aggravating circumstances, reflecting a pattern of disregard for court orders.
  • Sentencing courts are not permitted to extend a sentence beyond what the objective seriousness of the conduct warrants merely for preventative purposes, even where prospects of rehabilitation are assessed as poor.

Legislation and Cases Referenced

Legislation
- The offence of aggravated break, enter and steal carries a maximum penalty of 20 years imprisonment. A standard non-parole period of five years attaches to this offence (referenced by the court as a guidepost to sentencing).

Cases
- No cases were cited in the judgment text.

Expert Reports
- Psychiatric report of Dr Wilcox (tendered without objection), addressing the offender's mental illness and its connection to her offending.