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District Court 18 February 2010

R v Ejupi, Avzi

[2010] NSWDC 24

Assault & violenceDrugsTheft & propertyPublic order & justice offences
CRIMINAL LAW SENTENCE BREAK, ENTER AND STEAL VALUE OF GOODS STOLEN $2000 APROX. BREACH OF PAROLE HISTORY OF DRUG AND ALCOHOL ABUSE.

Citation: R v Ejupi, Avzi [2010] NSWDC 24
Court: District Court of New South Wales
Date: 18 February 2010
Judge(s): Nicholson SC DCJ

Background

The offender pleaded guilty to a statutory alternative charge of breaking, entering and stealing following a domestic burglary at a Kingsgrove dwelling in July 2008. The items stolen included approximately $1,600 in cash, a watch, and car keys. The offender's DNA was matched to a bottle found at the scene, and he was interviewed while serving an unrelated custodial sentence at a correctional centre.

Before the District Court was also a set of appeals from Local Court convictions and sentences arising from separate incidents. Those matters included shoplifting, using an offensive weapon to prevent lawful detention (three separate sequences), assault, assaulting a police officer, resisting an officer in the execution of duty, intentionally or recklessly destroying property, and unlawful entry on enclosed lands.

The sentencing proceedings addressed both the fresh District Court matter and the appeals together, resulting in a comprehensive resentencing exercise aimed at achieving a coherent, totality-compliant outcome.

  • What sentence was appropriate for the break, enter and steal offence, taking into account the offender's criminal history, parole status at the time, and history of drug and alcohol abuse?
  • Whether the Local Court convictions across the eight sequences should be confirmed or set aside on appeal.
  • Whether the Local Court sentences across those sequences were appropriate, or whether any should be varied in the interests of totality and proportionality.
  • Whether special circumstances existed justifying a variation to the standard non-parole to balance-of-term ratio.
  • Whether the offender was appropriate for referral to the Compulsory Drug Treatment Programme.

Decision

On the break, enter and steal offence, the court assessed the objective criminality as serious, emphasising the particular significance the law attaches to the sanctity of the home. The court noted the substantial increase in maximum penalty where breaking and entering accompanies stealing (from five years for stealing alone to fourteen years), reflecting the legislature's recognition of the harm caused by domestic burglary beyond mere property loss, including the victim's sense of violation and loss of security.

The court took into account the offender's breach of parole and his history of drug and alcohol abuse as relevant subjective factors. A Form 1 matter involving taking a conveyance without the owner's consent was also taken into account. The court found special circumstances, citing the totality of the overall sentence, which justified a non-parole period that departed from the standard statutory ratio.

On the Local Court appeals, all eight convictions were confirmed. Sentences for sequences 1 and 2 (shoplifting and one weapon offence) were confirmed as imposed. Sentences for sequences 3 through 7 were upheld in part: the convictions stood, but the sentences were reduced, with the court restructuring the terms to achieve a coherent overall sentencing outcome and avoid disproportionate accumulation. The sentence for sequence 8 (unlawful entry on enclosed lands) was confirmed without variation.

Having restructured the sentences to ensure they expired in a coordinated manner, the court referred the offender to the Compulsory Drug Treatment Programme, reflecting the court's view that addressing the offender's substance abuse issues was central to any prospect of rehabilitation.

Orders Made

  • Break, enter and steal (2009/00037718): Non-parole period of 18 months from 18 February 2010, expiring 17 August 2011; balance of term of 18 months expiring 17 February 2013. Take and drive conveyance without consent taken into account on Form 1.
  • Shoplifting (sequence 1): Appeal dismissed; conviction and 3-month sentence (from 4 May 2009 to 3 August 2009) confirmed.
  • Use offensive weapon to prevent lawful detention (sequence 2): Appeal dismissed; conviction and 6-month sentence (from 3 June 2009 to 2 December 2009) confirmed.
  • Use offensive weapon to prevent lawful detention (sequence 3): Appeal upheld in part; conviction confirmed; sentence reduced to non-parole period of 8 months from 4 August 2009 (expiring 3 April 2010), balance of term of 10 months expiring 3 February 2011.
  • Assault (sequence 4): Appeal upheld in part; conviction confirmed; 4-year s.9 bond quashed and replaced with 3-year s.9 bond from 18 February 2010.
  • Assault police officer (sequence 5): Appeal upheld in part; conviction confirmed; 4-year s.9 bond quashed and replaced with 3-year s.9 bond from 18 February 2010.
  • Resist officer in execution of duty (sequence 6): Appeal upheld in part; conviction confirmed; 4-year s.9 bond quashed and replaced with 3-year s.9 bond from 18 February 2010.
  • Intentionally/recklessly destroy or damage property (sequence 7): Appeal upheld in part; conviction confirmed; 4-year s.9 bond quashed and replaced with 3-year s.9 bond from 18 February 2010.
  • Unlawful entry on enclosed lands (sequence 8): Appeal dismissed; s.10A confirmed.
  • Special circumstances found; offender referred to the Compulsory Drug Treatment Programme.

Key Takeaways

  • The District Court reaffirmed that domestic burglary carries a high level of objective criminality because the law treats the sanctity of the home as a fundamental value, separate from and in addition to the loss of property caused.
  • A DNA match to an item found at the scene provided the evidentiary foundation for the guilty plea after a jury had been empanelled, with the plea entering to a statutory alternative charge rather than the aggravated form originally indicted.
  • Where a Local Court has imposed cumulative sentences across multiple related offences, the District Court on appeal may restructure the terms to achieve proportionality and totality, even while confirming all convictions.
  • Special circumstances can be established by reference to the overall structure and length of a combined sentence, permitting adjustment of the non-parole period to balance period ratio.
  • Referral to the Compulsory Drug Treatment Programme is available as part of the sentencing response where a court identifies drug and alcohol abuse as a significant underlying factor in the offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW): provisions relating to break, enter and steal; use of offensive weapon to prevent lawful detention; assault; assault police; resist officer in execution of duty; destroy/damage property
- Crimes (Sentencing Procedure) Act 1999 (NSW): s.9 bonds; s.10A; non-parole period provisions; special circumstances

Cases cited: None identified in the provided text.