Citation: R v Williams [2011] NSWDC 118
Court: District Court of New South Wales
Date: 21 July 2011
Judge: Berman SC DCJ
Background
A 21-year-old offender appeared for sentencing after pleading guilty at an early stage to aggravated break, enter and steal. The circumstance of aggravation was that he committed the offence in company. A number of additional related offences, including a prior break, enter and steal, fraudulent use of a stolen credit card, and possession of suspected stolen goods, were placed before the court on a Form 1 to be taken into account in sentencing.
The substantive offence involved a daytime break-in at a residential property, where the offender and a co-offender ransacked bedrooms and an office, taking gaming consoles, jewellery, and other items. Sentimental items of no replaceable value were among those stolen. The offender was detected after police stopped his vehicle and found stolen property inside, with further stolen goods located in his bedroom.
The court heard background evidence about the offender's personal circumstances, including the death of his younger half-brother, who suffered from cerebral palsy and with whom the offender had a close caring relationship. His counsel submitted that associating with the wrong social group had contributed to his offending, a characterisation the court appeared to accept on the evidence.
Legal Issues
- Whether the objective gravity of the offence, taken together with the Form 1 matters, required a custodial sentence
- Whether a suspended sentence was an appropriate disposal
- Whether an Intensive Correction Order (ICO) was an appropriate means of serving the sentence in place of full-time custody
Decision
The court found that, while the underlying criteria for the aggravated break, enter and steal charge placed it toward the lower end of the relevant range, the manner in which the offences were carried out elevated their objective seriousness. Particular weight was given to the theft of items of sentimental value, the ransacking of family and children's spaces, and the broader harm caused to householders' sense of safety and the community more generally through increased insurance costs.
The court rejected a suspended sentence. His Honour reasoned that a suspension would amount to no real punishment, and that there was a risk the offender would incorrectly conclude that serious offending carried no meaningful consequence. A 25 per cent discount was applied to the sentence in recognition of the early guilty plea.
The court accepted the submission by the offender's counsel that an Intensive Correction Order was an appropriate vehicle for serving the sentence. The Crown raised no opposition. The court noted, however, that there was no guarantee an ICO would be available, whether due to unsuitability on assessment or lack of placement, meaning full-time custody remained a possibility depending on the outcome of the assessment process.
The court convicted the offender, was satisfied that a sentence of imprisonment of less than two years was warranted, and referred him for assessment as to his suitability for an ICO.
Orders Made
- The offender was convicted of aggravated break, enter and steal (in company)
- A sentence of imprisonment of less than two years was determined to be appropriate
- The offender was referred for assessment as to suitability for an Intensive Correction Order
- The matter was adjourned to 9 September 2011
Key Takeaways
- Even where both the circumstance of aggravation and the underlying indictable offence sit toward the lower end of their respective criteria, the manner of offending and the consequences for victims can elevate the objective gravity of a break, enter and steal charge.
- A suspended sentence was rejected on the basis that it would constitute no real punishment and risked conveying to a young offender that serious offending goes without meaningful consequence.
- Where a defendant pleads guilty at an early stage, a 25 per cent discount from the otherwise applicable sentence is available under the applicable sentencing principles.
- Referral for an ICO assessment does not guarantee that order will be made; the sentencing court noted that unsuitability on assessment or unavailability of a placement could result in full-time custodial service instead.
- The District Court treated the Form 1 matters as reinforcing the need for personal deterrence, given they demonstrated a pattern of related offending rather than an isolated incident.
Legislation and Cases Referenced
Legislation:
- No specific legislation was cited in the judgment text, though the sentencing framework reflects the Crimes (Sentencing Procedure) Act 1999 (NSW), including provisions relating to standard non-parole periods, Form 1 matters, and Intensive Correction Orders.
Cases:
- No cases were cited in the judgment.