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District Court 30 June 2011

R v JEFFREYS; R v BURFITT

[2011] NSWDC 136

Assault & violenceTheft & propertyTraffic & driving
CRIMINAL LAW SENTENCE FORM 1 STEALING MOTOR VEHICLE AGGRAVATED BREAK, ENTER AND STEAL IN COMPANY

Citation: R v Jeffreys; R v Burfitt [2011] NSWDC 136
Court: District Court of New South Wales
Date: 30 June 2011
Judge: Berman SC DCJ

Background

Two co-offenders, both heavy users of methylamphetamine ("ice"), committed a series of offences in the early hours of 10 August 2010. After using drugs together at a mutual friend's house, they jointly decided to commit an offence to fund further drug purchases. They stole a Toyota Hilux and drove around before settling on breaking into a supermarket, which they believed to be unoccupied at the time. Three staff members were present inside, and both offenders fled when discovered, abandoning the cigarettes they had begun loading into a wheelie bin.

Police located the pair in the stolen vehicle shortly after. The driver, Jeffreys, refused to stop and drove dangerously, travelling on the wrong side of the road, into oncoming traffic on one-way streets, and at well above the speed limit, before becoming trapped in a dead-end street. When caught on foot, Jeffreys ran directly into a female police officer, knocking her down and continuing to resist until subdued. Burfitt was found hiding on residential premises and surrendered without similar resistance.

Both offenders were on conditional liberty at the time. Jeffreys was serving a suspended sentence for a driving offence and was on bail for other matters. Burfitt was subject to a 12-month section 9 bond for property damage offences and was also on bail.

  • What was the appropriate sentence for each offender, taking into account the objective gravity of the aggravated break, enter and steal offence and the applicable standard non-parole period?
  • How should the standard non-parole period for aggravated break, enter and steal be applied where a guilty plea has been entered?
  • What weight should be given to each offender's subjective circumstances, including drug dependency, personal history, and prospects for rehabilitation?
  • How should the principle of totality be applied to the multiple offences committed by each offender?
  • Whether Burfitt's sentence should be adjourned to allow him to pursue residential drug rehabilitation, and on what conditions?

Decision

Berman SC DCJ assessed the objective gravity of the aggravated break, enter and steal as significantly below the mid-range for offences of that type. The circumstance of aggravation relied upon by the Crown, namely that the offenders were "in company," is among the least serious of the available aggravating circumstances. The underlying offence was stealing, which is also at the lower end of the scale, and the offenders did not expect anyone to be present. No person was harmed, no significant property damage occurred beyond the forced entry, and the offenders were surprised before they could remove any property from the premises.

The court acknowledged the standard non-parole period of five years for aggravated break, enter and steal, noting that while it did not apply directly given the guilty pleas, it remained an important guidepost. Jeffreys' lengthy criminal history, predominantly for driving offences, and his conditional liberty at the time of offending were treated as aggravating factors. The court also noted, however, that Jeffreys had made genuine efforts to turn his life around after his last period of imprisonment ended in 2003, including establishing his own business, before his drug use escalated and led to the present offending.

For Jeffreys, the court imposed a structured aggregate sentence: a fixed term of one year for the stealing of a motor vehicle, dangerous driving during a police pursuit, and driving whilst disqualified, to be followed by a further sentence for the aggravated break, enter and steal, producing an overall non-parole period of two years and a head sentence of four years commencing 9 August 2011. The court also referred Jeffreys to the Drug Court for consideration of a compulsory drug treatment order.

For Burfitt, sentencing was adjourned to 18 November 2011 to allow him to pursue entry into the Glen Centre residential rehabilitation program. The court imposed strict conditions on his remand, including residing at a specified address (or within the Glen Centre if accepted), abstaining from illicit drugs, and actively pursuing admission to the program.

Orders Made

Jeffreys:
- Fixed term of one year's imprisonment for stealing a motor vehicle, driving dangerously during a police pursuit, and driving whilst disqualified, commencing 9 August 2011.
- For aggravated break, enter and steal: non-parole period of one year commencing 9 August 2012, head sentence of three years.
- Overall sentence: non-parole period of two years, head sentence of four years, commencing 9 August 2011.
- Disqualification from driving for three years, concurrent, commencing from the expiry of any existing disqualification.
- Referred to the Drug Court for consideration of a compulsory drug treatment order.

Burfitt:
- Sentencing adjourned to 18 November 2011.
- Remanded under section 11 of the Crimes (Sentencing Procedure) Act on conditions including: good behaviour; residence at a specified address (or the Glen Centre if admitted); active pursuit of admission to the Glen Centre residential rehabilitation program; compliance with all program requirements if admitted; and no illicit drug use.
- If not accepted into the Glen Centre by 30 July, Burfitt was required to notify the court and have the matter immediately relisted.
- Updated pre-sentence report ordered for the adjourned date.

Key Takeaways

  • The District Court confirmed that the standard non-parole period for aggravated break, enter and steal, while not directly applicable where a guilty plea has been entered, remains a significant guidepost in the sentencing exercise.
  • Objective gravity for an aggravated break, enter and steal offence may be assessed as significantly below the mid-range where the aggravation is based solely on the offenders being "in company," no violence occurred, no persons were harmed, the premises were non-residential, and no property was ultimately taken.
  • The principles discussed in R v Ponfield were applied to identify the absence of factors that would otherwise elevate seriousness, including repeat incursions, harm to persons, and significant property damage.
  • Conditional liberty at the time of offending, whether by way of bail, suspended sentence, or a good behaviour bond, operates as an aggravating factor at sentencing.
  • The court's approach to Burfitt illustrates that adjourned sentencing under section 11 of the Crimes (Sentencing Procedure) Act, with conditions designed to facilitate drug rehabilitation, remains available in appropriate cases where there is a genuine rehabilitation prospect.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 11

Cases:
- R v Ponfield (1999) 48 NSWLR 327