Citation: R v Pincham [2011] NSWDC 49
Court: District Court of New South Wales
Date: 15 April 2011
Judge(s): Berman SC DCJ
Background
The offender was a man with a lengthy criminal history, predominantly for break, enter and steal offences, driven by a long-standing heroin addiction. He had spent more than half his life in custody and, by the court's assessment, had become significantly institutionalised as a result.
On the very day of his release from custody on 21 March 2010, the offender committed three break, enter and steal offences targeting commercial premises. He committed a further three offences over the following two weeks. Two of those matters had already been dealt with in the Local Court, where he received concurrent fixed terms of two years' imprisonment each, commencing 6 April 2010. The District Court was required to sentence him for the remaining four offences, with two additional less serious matters taken into account on a Form 1.
After his Local Court sentencing, the offender had been referred to the Drug Court and inducted into the Compulsive Drug Treatment Correctional Centre, where he had, for the first time, made meaningful progress with his addiction. This progress formed the central complicating factor in the sentencing exercise.
Legal Issues
- What sentence was appropriate for four break, enter and steal offences committed shortly after release from parole, having regard to the objective gravity of each offence and the principle of totality?
- Whether the court should take into account the thresholds and eligibility criteria of the Compulsive Drug Treatment Correctional Centre when determining the length of sentence, or whether it should first determine the appropriate sentence according to law and only then consider program eligibility.
- Whether special circumstances existed justifying a departure from the standard statutory ratio between the non-parole period and the head sentence.
- Whether the offender's recent rehabilitation progress warranted findings of good prospects of rehabilitation or reduced likelihood of reoffending.
Decision
Berman SC DCJ accepted the Crown's position that the correct approach was to determine the appropriate sentence according to law first, having regard to objective gravity and relevant mitigating factors, and only then to consider whether that sentence would permit the offender to remain in the drug treatment program. The court was satisfied that the sentence ultimately imposed did preserve the offender's eligibility to continue in the Compulsive Drug Treatment Correctional Centre.
The court identified the offender's commission of offences on the day of his release, and while on parole, as a significant aggravating factor. A 25 per cent reduction was applied to reflect the offender's early guilty plea. His expression of remorse was noted, but the court declined to find good prospects of rehabilitation or a reduced likelihood of reoffending, given his substantial criminal history.
Special circumstances were found, however, justifying an extended parole period relative to the non-parole period. The court reasoned that if the offender had any prospect of rehabilitation, it required substantial support and supervision during parole. The sentences were structured to be partially cumulative on those already imposed by the Local Court, with the court applying the totality principle to ensure the overall sentence reflected the offender's overall criminality without being disproportionate, while also ensuring no individual offence went unpunished.
The court distinguished between offences against commercial premises and residential burglaries, noting that the particular harm associated with the violation of a home did not arise to the same extent in these cases. This was a relevant factor in assessing objective seriousness, though it did not diminish the criminality involved.
Orders Made
- Offence of 21 March 2010: Fixed term of 2 years' imprisonment, commencing 6 April 2011.
- Offence of 25 March 2010: Fixed term of imprisonment, commencing 6 October 2011 (duration not expressly stated in the text beyond the commencement date).
- Offence of 27 March 2010: Non-parole period of 2 years commencing 6 April 2012; head sentence of 3 years.
- Offence of 2 April 2010 (including Form 1 matters): Non-parole period of 2 years commencing 6 October 2012; head sentence of 4 years.
- Overall effective sentence: Non-parole period of 3 years and 6 months; head sentence of 5 years and 6 months; eligible for release to parole on 5 October 2014.
- The offender was referred back to the Drug Court with a firm recommendation that he be assessed as eligible to continue his compulsory drug treatment order.
Key Takeaways
- The District Court confirmed that when a sentence's length might affect an offender's eligibility for a drug treatment program, the correct sequence is to determine the appropriate sentence according to law first, and only then assess the program eligibility consequences.
- Special circumstances justifying an extended parole period can be found where the sentencing court is satisfied that the offender's prospects of rehabilitation depend substantially on prolonged post-release supervision and support, even where good prospects of rehabilitation cannot positively be found.
- An early guilty plea attracted a 25 per cent reduction in the sentence that would otherwise have been imposed.
- Offending on the day of release from custody, while on parole, constitutes a significant aggravating factor in sentencing.
- The totality principle requires the overall sentence to reflect the offender's overall criminality, but does not preclude each offence from carrying some additional custodial consequence, particularly where multiple separate acts of criminality are involved.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 35A (certificate requirement for Form 1 matters)
Cases cited: None stated in the judgment.