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District Court 13 May 2011

R v Steven KROTIRIS

[2011] NSWDC 111

Theft & property
CRIMINAL LAW SENTENCE STEAL PROPERTY IN A DWELLING HOUSE OFFENDER ARRESTED WHILE RUNNING AWAY OFFENDER FOUND BY POLICE PLEA OF GUILTY AT LATE STAGE

Citation: R v Steven Krotiris [2011] NSWDC 111
Court: District Court of New South Wales
Date: 13 May 2011
Judge: Cogswell SC DCJ

Background

In the early hours of 9 December 2008, the offender and a co-offender climbed over a two-metre security gate at a residential block in Bellevue Hill. They attempted to break into one unit, were disturbed, and then used a makeshift ladder to access the balcony of a nearby unit whose sliding door had been left slightly open. The co-offender entered the unit, woke the occupant, and fled after being confronted. Police arrived and arrested the co-offender while he was running away. The offender was found nearby and told police he had been exercising.

The offender was charged with stealing property in a dwelling house, contrary to section 148 of the Crimes Act 1900, with a further charge of attempted break and enter with intent to steal taken into account on a Form 1. The co-offender had pleaded guilty at the earliest opportunity and was sentenced in September 2009 to two years imprisonment with a one-year non-parole period.

The offender initially pleaded not guilty. His trial was listed and vacated on three separate occasions between November 2009 and October 2010. The matter finally came on for hearing in January 2011, at which point, following a voir dire in which certain evidence was admitted, the offender entered a guilty plea.

  • What sentence was appropriate for stealing property in a dwelling house, having regard to the objective seriousness of the offence?
  • What discount, if any, should be applied for a guilty plea entered at a very late stage?
  • How should the offender's personal circumstances, including drug dependency, remorse, and rehabilitation efforts, be weighed against significant aggravating factors?
  • Was an intensive correction order available or appropriate as an alternative to full-time imprisonment?
  • How should the sentence commencement date be calculated, taking into account time already served in custody and a bail curfew condition?

Decision

Cogswell SC DCJ assessed the objective seriousness of the offence as falling toward the lower end of the range when compared with other offences of the same type, consistent with the finding made in the co-offender's sentence. However, the judge was careful to distinguish that assessment from the subjective features affecting the offender's culpability, which were significantly less favourable than those of his co-offender.

Three aggravating factors were established: the offender had prior convictions for offences of the same kind; the offence was committed in company; and it was committed while the offender was on conditional liberty. A fourth alleged aggravating factor, that the offence was planned, was not taken into account because the court was not sufficiently satisfied it was established. The court also noted that the offender was not the person who physically entered the unit, his role being to remain outside and be available to assist.

On the guilty plea, the court allowed a discount of just over five per cent, reflecting the very late stage at which the plea was entered. This contrasted sharply with the 25 per cent discount afforded to the co-offender for his early plea. The court took into account genuine remorse, confirmed by a psychologist's report, a serious long-term heroin addiction that was linked to the offending, and the offender's re-engagement with a methadone program. These matters influenced the structure of the sentence, particularly the reduction of the non-parole period below the standard proportion.

The court fixed a head sentence of 34 months (three years less a two-month discount for the plea) with a non-parole period of 18 months. Because the head sentence exceeded two years, an intensive correction order was not available. The parole period was set at 16 months with supervision conditions directed at drug rehabilitation.

Orders Made

  • Head sentence of 34 months imprisonment for stealing property in a dwelling house
  • Non-parole period of 18 months
  • The attempted break and enter with intent to steal offence taken into account on a Form 1 certificate under section 43 of the Crimes (Sentencing Procedure) Act 1999
  • Parole conditions including:
  • Good behaviour
  • Attendance at court if called upon
  • Notification to the Probation and Parole Service of any change of residential address
  • Supervision by the Probation and Parole Service, with particular reference to drug rehabilitation

Key Takeaways

  • A guilty plea entered only after a voir dire, and following three earlier adjournments, attracted a discount of just over five per cent, a figure the District Court explicitly contrasted with the 25 per cent discount available for an early plea by the co-offender in the same matter.
  • Offending committed in company, while on conditional liberty, and by a person with prior convictions for similar offences constitutes a cluster of statutory aggravating factors that materially increases the appropriate sentence under the Crimes (Sentencing Procedure) Act 1999.
  • Where the alleged planning of an offence is not sufficiently established on the evidence, the sentencing court will decline to treat it as an aggravating circumstance, even where it may arguably be available.
  • Genuine drug-related remorse and rehabilitation efforts can influence the structure of a sentence, particularly the length of the non-parole period, even where they do not reduce the head sentence itself.
  • A head sentence exceeding two years disqualifies the offender from an intensive correction order, making the determination of the head sentence the threshold question for that penalty option.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 148 (stealing property in a dwelling house; maximum penalty seven years imprisonment)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 43 (Form 1 procedure for additional offences taken into account on sentence)

Cases:
No cases were formally cited in the judgment. The sentence imposed on the co-offender by Judge King SC (24 September 2009, unreported) was referred to for comparative purposes.