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District Court 5 November 2010

R v MADDEN

[2010] NSWDC 337

Theft & property
CRIMINAL LAW SENTENCE IN COMPANY LARCENY

Citation: R v Madden [2010] NSWDC 337
Court: District Court of New South Wales
Date: 5 November 2010
Judge(s): Berman SC DCJ

Background

The offender pleaded guilty to aggravated break, enter and commit a serious indictable offence in company. On 16 March 2008, he and an unknown female companion smashed their way into an Australia Post office at around 10 pm and stole a large quantity of items including hard drives, printers, SIM cards, games and Royal Easter Show tickets.

The case came to light through DNA evidence. Police found a piece of paper with a red-brown stain behind the counter, which the Division of Analytical Laboratories later matched to the offender's DNA. CCTV footage was too unclear to use for identification, so the DNA evidence was the sole basis for the prosecution.

Sentencing did not occur until 5 November 2010, more than two and a half years after the offence, primarily because of delays in the laboratory's analysis and notification to police. In the intervening period, the offender had served an unrelated sentence and had only recently been re-arrested on this matter on 30 November 2009.

  • What sentence was appropriate for aggravated break, enter and commit a serious indictable offence in company, having regard to the standard non-parole period of five years and the maximum penalty of 20 years?
  • What weight should be given to the significant delay between the offence and sentencing?
  • How should the court treat the Judicial Commission sentencing statistics, which showed that not one of the 449 offenders sentenced for this type of offence had received a non-parole period exceeding the standard non-parole period, and only five had received the standard non-parole period itself?
  • Were there special circumstances justifying a longer-than-usual ratio of parole to non-parole period?
  • Was the offender suitable for referral to the Drug Court for a compulsory drug treatment order?

Decision

Berman SC DCJ opened by noting the injustice that can arise from under-resourced forensic laboratories. The delay between the offence and sentencing was treated as a significant mitigating factor, as it meant the offender was being sentenced for conduct that occurred well in the past.

The court assessed the objective seriousness of the offence as below the midrange. The indictable offence committed after entry was larceny, which is less serious than many other offences that can trigger the aggravated provision. The circumstance of aggravation, namely being in company, was described as one of the less serious available aggravating factors. Nonetheless, the court noted that entry was gained by smashing the front door and that a significant number of items were stolen.

On the Judicial Commission statistics, the court acknowledged a striking pattern: no offender had ever received a non-parole period longer than the standard, and only one per cent had received the standard itself. Berman SC DCJ noted this appeared to represent a failure to give effect to legislative intent, but concluded that consistency in sentencing, as articulated by the High Court in Lowe v R, required the statistics to guide the outcome regardless of that concern.

Taking into account the early guilty plea (which reduced the sentence by 25 per cent), the offender's lengthy but less serious criminal history, his significant drug dependency, the delay in prosecution, the short time spent in the community before re-arrest, and the risk of institutionalisation, the court found special circumstances and adjusted the balance between non-parole period and head sentence accordingly. The offender was also referred to the Drug Court to assess his suitability for a compulsory drug treatment order.

Orders Made

  • The offender was sentenced to imprisonment with a non-parole period of two and a half years, commencing 30 November 2009 and expiring 29 May 2012.
  • The head sentence was set at four and a half years.
  • The offender was referred to the Drug Court for determination of his suitability for a compulsory drug treatment order.

Key Takeaways

  • The District Court treated significant prosecutorial delay caused by under-resourced forensic laboratories as a meaningful mitigating factor at sentencing, reflecting the potential unfairness to offenders sentenced long after the conduct occurred.
  • Consistency in sentencing extends beyond co-offenders: citing Lowe v R, the court held that Judicial Commission statistics across all comparable cases must guide the sentence, even where those statistics appear to diverge markedly from legislative intent.
  • A guilty plea entered at the earliest opportunity attracted a 25 per cent reduction in the sentence that would otherwise have been imposed.
  • Where an offender has spent only a brief period in the community before re-arrest, and sentences are effectively being served cumulatively, those circumstances can constitute special circumstances justifying a lower non-parole-to-head-sentence ratio.
  • Referral to the Drug Court for assessment of suitability for a compulsory drug treatment order remained available even where a term of imprisonment was imposed.

Legislation and Cases Referenced

Cases:
- Lowe v R [1984] HCA 46; (1984) 154 CLR 606

Legislation:
- No specific legislative provisions were cited by name in the text provided, though the judgment references the standard non-parole period and maximum penalty applicable to aggravated break, enter and commit a serious indictable offence in company under New South Wales law.