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District Court 11 March 2011

R v Enosa

[2011] NSWDC 139

Assault & violenceTheft & property
CRIMINAL LAW SENTENCE AGGRAVATED BREAK, ENTER AND STEAL

Citation: R v Enosa [2011] NSWDC 139
Court: District Court of New South Wales
Date: 11 March 2011
Judge: Gibson DCJ

Background

The offender pleaded guilty to one count of aggravated break, enter and steal contrary to s 112(2) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 20 years imprisonment and a standard non-parole period of five years. The offence arose from events on 8 April 2007 at a residential property in Lidcombe.

The offender joined a group of five to seven men who had already restrained the complainant at his home. The complainant was bound and gagged in another room while the offender ransacked wardrobes searching for valuables. During the incident, a co-offender threatened the complainant with a gun, and another co-offender struck the complainant's hands with a hammer. The offender took no part in any of the physical violence.

The offender's fingerprints were identified at the scene on 9 April 2007, but he was not arrested until 23 October 2009 and remained in custody from that date. He did not plead guilty until the day fixed for trial, after a co-charge under s 86(2)(a) of the Crimes Act was withdrawn.

  • What discount should apply to the sentence for a guilty plea entered on the day of trial rather than at the first available opportunity?
  • Where does the offence sit on the scale of objective seriousness relative to the standard non-parole period?
  • Whether the offender was entitled to any reduction in sentence arising from the unexplained delay between fingerprint identification and arrest.
  • Whether special circumstances existed to justify adjusting the ratio between the non-parole period and the balance of the term.

Decision

Guilty plea discount: Gibson DCJ found the offender was not entitled to the maximum utilitarian discount, as his plea came only on the day of trial. The offender's counsel argued for a 15% discount, but the judge assessed 10% as appropriate. The case was not of sufficient complexity to justify a higher utilitarian value, and the plea carried limited practical benefit by that stage.

Objective seriousness and the standard non-parole period: The offence was characterised as falling well within the middle range of objective seriousness. The judge acknowledged the offender's role was that of a "foot soldier" who did not participate in restraining or assaulting the complainant, but found his participation in a joint criminal enterprise, in the presence of an armed co-offender, still constituted significant criminal conduct. The standard non-parole period operated as a reference point, not a mandatory minimum, consistent with R v Way (2004) 60 NSWLR 168.

Delay in arrest: The offender argued that the unexplained gap between fingerprint identification and arrest should reduce his sentence. The judge rejected this argument, applying R v Kay [2004] NSWCCA 130 and Thorpe v R [2010] NSWCCA 261. No discount was warranted for the delay.

Special circumstances: The judge found special circumstances under Part 4 Division 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW), having regard to the psychologist's report recommending extended supervision to address the offender's drug and alcohol dependency. An extended parole period was warranted to support rehabilitation.

Orders Made

  • The offender was convicted of aggravated break, enter and steal under s 112(2) of the Crimes Act 1900 (NSW).
  • Sentenced to five years imprisonment, backdated to commence on 23 October 2009.
  • Non-parole period of two years and six months, expiring 22 April 2012.
  • The offender became eligible for release on parole on 22 April 2012.

Key Takeaways

  • A guilty plea entered on the day of trial, without a jury being empanelled, attracted only a 10% utilitarian discount rather than the higher discount available for early pleas, applying the principle in R v Thompson (2000) 49 NSWLR 383.
  • Participation in a joint criminal enterprise as a "foot soldier," where violence was inflicted by others and the offender had no knowledge of it, can still constitute conduct falling within the middle range of objective seriousness for aggravated break, enter and steal.
  • Under R v Kay and Thorpe v R, an unexplained administrative delay between fingerprint identification and arrest does not automatically entitle an offender to a sentencing reduction.
  • Special circumstances justifying a reduced non-parole period can arise where a psychologist's evidence establishes that extended post-release supervision would materially assist in addressing drug and alcohol dependency.
  • The standard non-parole period under the Crimes (Sentencing Procedure) Act 1999 (NSW) functions as a guidepost when sentencing after a plea of guilty, requiring the court to assess objective seriousness on a scale, consistent with R v Way and Georgopoulos v R [2010] NSWCCA 246.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 86(2)(a) and 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 47(2) and Part 4 Division 1A

Cases:
- Georgopoulos v R [2010] NSWCCA 246
- R v Kay [2004] NSWCCA 130
- R v Pickett [2010] NSWCCA 273
- R v Ponfield (1999) 48 NSWLR 327
- R v Thompson (2000) 49 NSWLR 383
- R v Way (2004) 60 NSWLR 168
- Thorpe v R [2010] NSWCCA 261
- Vu v Regina [2006] NSWCCA 188