Citation: R v Dunbar [2010] NSWDC 94
Court: District Court of New South Wales
Date: 22 April 2010
Judge(s): Berman SC DCJ
Background
The offender, an Aboriginal man from Redfern with a lengthy criminal history rooted in drug dependency, had been on parole and maintaining himself on methadone through a local chemist. When the chemist banned him from the premises, he was left without access to his methadone for three to four days.
After several days in withdrawal, the offender and one other person smashed the front door of the chemist shop and stole a quantity of drugs, including methadone, Subutex, and other pharmaceuticals. Police attended the offender's residence within hours and recovered almost all of the drugs. The offender was on parole at the time of the offence, which aggravated the overall seriousness of his conduct.
The sole circumstance of aggravation relied upon was that the offence was committed in company. The offender pleaded guilty and expressed remorse, attributing his actions to physical need and feelings of revenge toward the chemist.
Legal Issues
- Whether the offence fell at, above, or below the middle of the range of objective seriousness for break, enter and steal in company, which carries a standard non-parole period of five years and a maximum of 20 years
- How the standard non-parole period should operate as a benchmark where a plea of guilty has been entered
- Whether special circumstances existed warranting a head sentence longer than the standard ratio to the non-parole period
Decision
Berman SC DCJ found that the offence was significantly below the middle of the range of objective seriousness. The judge reasoned that being in company is the least serious of the available circumstances of aggravation under section 105A(1) of the Crimes Act 1900, particularly when compared to circumstances such as carrying an offensive weapon, using violence, inflicting bodily harm, or knowing a person was present on the premises.
His Honour also noted that the offender's reduced capacity for rational decision-making at the time, caused by several days of methadone withdrawal, was a relevant mitigating factor. The unusual nature of the offence was observed: rather than stealing money to buy drugs illicitly, the offender targeted the chemist directly to obtain a prescription maintenance drug, which was consistent with an attempt to avoid illegal drug use.
His Honour applied the Court of Criminal Appeal's guidance that, where a plea of guilty has been entered, the non-parole period should generally be 25 percent less than the standard non-parole period as a starting benchmark. Special circumstances were found, given the offender's history of attempted drug rehabilitation and his significant need for structured supervision and support on parole to reduce reoffending risk. This justified a head sentence that extended beyond the standard ratio.
The judge imposed a non-parole period of two years (from 8 September 2009, making the offender eligible for parole on 7 September 2011) and a head sentence of four years. A Form 1 matter relating to cannabis possession was also taken into account.
Orders Made
- The offender was sentenced to imprisonment with a non-parole period of two years, commencing 8 September 2009, and a head sentence of four years
- The cannabis the subject of the Form 1 was ordered to be destroyed
Key Takeaways
- The District Court confirmed that being "in company" is the least serious of the circumstances of aggravation available under section 105A(1) of the Crimes Act 1900, and that its presence alone can place an offence significantly below the middle of the range of objective seriousness
- A reduced capacity for rational thought arising from prolonged drug withdrawal was treated as a relevant mitigating circumstance when assessing the offender's moral culpability at the time of the offence
- Where a guilty plea has been entered, the Court of Criminal Appeal's approach at the time directed sentencing courts to apply approximately a 25 percent reduction from the standard non-parole period as a benchmark starting point
- Special circumstances justifying a departure from the standard non-parole to head sentence ratio were established by reference to the offender's need for extended supervised parole to support ongoing drug rehabilitation
- The sentencing court acknowledged the broader critique of the standard non-parole period regime while affirming that the regime remained binding law requiring application
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), including section 105A(1) (circumstances of aggravation for break, enter and steal)
Cases:
- No specific cases were cited in the judgment text, though the decision references Court of Criminal Appeal guidance on the application of the standard non-parole period following a guilty plea