Citation: R v Ridgeway; R v Sheard; R v Wells [2011] NSWDC 90
Court: District Court of New South Wales
Date: 16 June 2011
Judge: Berman SC DCJ
Background
Three offenders appeared for sentencing after each pleaded guilty in the Local Court to aggravated break, enter and steal in circumstances of aggravation. The offence arose from a home invasion on 7 July 2010, during which a 73-year-old man was deceived into opening his door to one of the offenders, who posed as a stranger needing to use the toilet.
Once inside, two male offenders entered from outside, each armed with a machete and with their faces concealed. They demanded access to a safe, which the victim denied. A struggle followed, and the victim sustained superficial lacerations and a fractured left clavicle. A watch and an old mobile phone were taken before the offenders fled.
The three offenders had very different criminal histories, personal circumstances, and roles in the offence. That divergence produced substantially different sentences, even though the underlying offence was the same for each.
Legal Issues
- What was the objective seriousness of the offence, given the multiple circumstances of aggravation present under the Crimes Act?
- How should the court approach sentencing where the Crown tendered separate, partly inconsistent statements of facts for each offender, and where co-offenders disputed which of them had physically struggled with the victim?
- How should the standard non-parole period of five years function as a guidepost in calibrating the appropriate sentence?
- How should the principle of parity be applied across three offenders with very different subjective circumstances?
- Did any offender's personal circumstances warrant a finding of special circumstances to extend the parole period?
Decision
Berman SC DCJ assessed the objective seriousness of the offence as slightly above the middle of the range for this category of offending. Multiple circumstances of aggravation existed: the offenders were in company, two were armed with machetes, corporeal violence was inflicted, actual bodily harm was occasioned, and all three knew the victim was at home. The victim's age and his exploitation through a deception at the front door added further weight to the gravity of the conduct.
A difficulty arose from the Crown's decision to tender three separate statements of fact, which were partly inconsistent about which male offender struggled with the victim and which one then searched the premises with the female offender. His Honour declined to sentence either male offender on the basis that he was the one who struggled with Mr Canon, but equally declined to make a positive finding in favour of either of them that they had played only a minor role after entry. The court held that such a finding would need to be proved on the balance of probabilities, and police statements not repeated in court evidence were insufficient for that purpose.
His Honour applied the parity principle, aiming to ensure no offender had a justifiable sense of grievance by comparison with the others. The significant differences in outcome were attributed to the very different subjective features of each offender. The female offender, aged 18 at the time, had experienced severe disadvantage including the early death of her mother, had no prior convictions, and had spent over seven months on remand. Both male offenders had extensive criminal records; however, one had more serious prior history and a longer record than the other. His Honour found special circumstances in favour of both male offenders, noting the benefit of extended parole supervision in addressing entrenched drug use.
Orders Made
- Ridgeway: Released forthwith; 200 hours of community service; required to report to Lake Macquarie Probation and Parole Service within seven days of release.
- Sheard: Sentenced to imprisonment with a non-parole period of 2 years and 6 months and a head sentence of 5 years, commencing 7 October 2010; eligible for parole from 6 April 2013.
- Wells: Sentenced to imprisonment with a non-parole period of 4 years and a head sentence of 6 years and 6 months, commencing 14 November 2010; eligible for parole from 13 November 2014.
Key Takeaways
- Where a Crown tenders separate statements of fact for co-offenders that are partly inconsistent, and those statements are not reproduced in court evidence, a sentencing court cannot make a positive finding in favour of one offender that they played only a minor role; that finding must be established on the balance of probabilities.
- Multiple circumstances of aggravation under s 105 of the Crimes Act will significantly affect objective seriousness, but a court must take care to avoid double counting when more than one aggravating factor is present.
- The standard non-parole period of five years for aggravated break, enter and steal operates as an important guidepost requiring the court to place the offence on the range of objective seriousness with greater precision than would otherwise be required.
- Substantially different sentences among co-offenders are consistent with the parity principle where those differences reflect genuinely divergent subjective circumstances, including age, criminal history, and personal background.
- A finding of special circumstances to extend the ratio of parole supervision may be made where entrenched drug dependency is a dominant causative factor, given the benefit to both the offender and the community of addressing that dependency under supervision.
Legislation and Cases Referenced
Legislation:
- Crimes Act (NSW), including s 105 (circumstances of aggravation for break, enter and steal offences)
Cases:
No cases were cited in the text of the judgment.