Citation: R v Clayton KEAN [2010] NSWDC 29
Court: District Court of New South Wales
Date: 12 February 2010
Judge(s): Berman SC DCJ
Background
The offender appeared for sentencing on multiple offences committed in late 2008. The primary matter involved aggravated break, enter and steal: the offender used a garden stake through an unlocked dog door to hook and remove a bag from an occupied home, partially crossing into the premises in the process. The following day he returned and stole a Mercedes motor vehicle using keys taken from the bag.
A second series of offences involved a break, enter and steal at a weight loss centre, where the offender opened a safe and took approximately $200 in cash after being seen by people on the premises. A Form 1 matter (a further offence to be taken into account on sentence without a separate conviction) involving the unlawful use of a vehicle was also before the court.
The offender had an extensive criminal history, had spent much of his adult life in custody, and committed these offences very shortly after his release from custody in Tasmania, having moved to New South Wales intending to make a fresh start.
Legal Issues
- Whether the aggravated break, enter and steal fell below, at, or above the mid-range of objective gravity, given the nature of the entry and the circumstances of the victim
- How to structure accumulated sentences across multiple offences to reflect the overall criminality without being disproportionate
- Whether special circumstances existed to justify departing from the standard ratio between the non-parole period and the head sentence
- What weight to give drug addiction, lack of rehabilitation, and repeated offending on conditional liberty when determining sentence
Decision
On the aggravated break, enter and steal, the court found the offence fell below the mid-range of objective gravity. Although the premises were occupied, the entry was limited to the offender's arm through a dog door, and the occupant did not even realise the burglary had occurred until later. There was none of the terror associated with a direct confrontation inside the home. The standard non-parole period for this offence is five years, but the court imposed a lower non-parole period of two and a half years, reflecting both the lesser objective gravity and the need to structure cumulative sentences.
The offender pleaded guilty to the vehicle theft and the break, enter and steal, attracting a 25 percent discount on those matters. The court noted that in objective terms the break, enter and steal at the weight loss centre was arguably more serious than the aggravated offence, involving complete entry to the premises and theft from a safe after being observed by witnesses.
On the question of special circumstances, the court acknowledged the offender's history of failing to use conditional liberty productively and recognised that releasing him earlier than the statutory ratio would ordinarily suggest could simply bring forward the next offence. Despite this, the court made a finding of special circumstances, expressly framing this not as leniency toward the offender but as a measure intended to benefit the community by promoting rehabilitation. The court made a strong recommendation that parole be conditioned on attendance at a residential rehabilitation program, and referred the matter to the Drug Court for consideration of the Intensive Drug Treatment Program at Parklea Gaol.
Orders Made
- Aggravated break, enter and steal (29 September 2008): non-parole period of two and a half years from 1 December 2008; head sentence of four years
- Stealing of Mercedes motor vehicle (30 September 2008): fixed term of one year from 1 December 2010
- Break, enter and steal (11 December 2008), taking into account the Form 1 matter: non-parole period of two and a half years from 1 June 2010 (expiring 30 November 2012); head sentence of five years
- Matter referred to the Drug Court for consideration of eligibility for the Intensive Drug Treatment Program at Parklea Gaol
- Two matters on the section 166 certificate dismissed
Key Takeaways
- A finding of special circumstances in favour of an offender with an entrenched history of reoffending can still be made where the court identifies a genuine rehabilitative purpose that benefits the community, not merely the offender.
- The District Court treated the extent and nature of the physical entry as a relevant factor in assessing objective gravity for break, enter and steal, even where the aggravated form of the offence was established.
- Committing offences within days of release from custody, even if technically after the expiry of parole rather than while on parole, remains consistent with a finding of a continuing attitude of disobedience to the law.
- Where multiple sentences must be accumulated, the need to avoid a crushing overall sentence is a factor that can justify setting a non-parole period below the standard non-parole period for the primary offence.
- Drug addiction alone does not automatically mitigate sentence where the offender has made no genuine effort to seek rehabilitation and has repeatedly reoffended to fund drug use.
Legislation and Cases Referenced
Legislation:
- The legislation creating the aggravated break, enter and steal offence (the specific provision is not named in the judgment but governs the standard non-parole period of five years for that offence)
- Provisions relating to Form 1 offences (taken into account on sentence)
- Section 166 certificate provisions (under which two matters were dismissed)
Cases cited: None cited in the provided text.