Citation: R v Neil Andrew Pettersen [2012] NSWDC 153
Court: District Court of New South Wales
Date: 19 April 2012
Judge: Judge S Norrish QC
Background
The offender was sentenced for two offences of aggravated break and enter in company, together with three related offences taken into account on a Form 1 (a procedural mechanism allowing courts to consider additional offences when sentencing, without recording separate convictions for them). The offences arose from two distinct episodes in 2011: a conspiracy to break into a perfume warehouse at Rosehill in March, and an attempted break-in at a commercial warehouse at Belrose in May. The Form 1 offences involved three counts of taking and driving a motor vehicle without consent, each vehicle having been stolen to facilitate the planned burglaries.
A significant aggravating feature was that the offender was on parole at the time he committed both offences, and his parole was revoked following his arrest in September 2011. Police had been monitoring the offender and his associates through telephone intercepts from January 2011, well before the offences were committed. The evidence showed detailed planning, including the purchase of implements consistent with burglary tools.
The offender entered early guilty pleas at the Local Court and gave evidence at the sentencing hearing.
Legal Issues
- What discount applied for the early guilty plea?
- How should the court treat the breach of parole as an aggravating factor, and how should the commencement date of the new sentences be fixed to avoid "double dipping"?
- Whether special circumstances existed warranting a departure from the standard ratio of non-parole period to total sentence under the Crimes (Sentencing Procedure) Act 1999?
- How the Form 1 offences should be reflected in the overall sentence for the principal offence?
- What weight the standard non-parole period carried following Muldrock v R [2011] HCA 39?
Decision
The court applied a 25 per cent discount to reflect the utilitarian value of the early guilty pleas, consistent with the principle that such pleas conserve court resources and warrant recognition in sentencing. The offender had pleaded guilty at the first reasonable opportunity, and no evidence contradicted that characterisation.
On the question of commencement date, the court acknowledged the tension identified in Callaghan v The Queen [2006] NSWCCA 58 between treating a parole breach as an aggravating factor and simultaneously requiring the offender to serve the balance of the revoked parole before the new sentence begins. To avoid the "double dipping" that would result from doing both, the court commenced the effective sentence from 6 February 2012, approximately five months after the offender re-entered custody in September 2011, rather than from the date parole formally expired.
The court found special circumstances warranting a longer-than-standard ratio of parole supervision to total sentence. This finding rested on the nature and extent of the offending, the need for an extended period of supervised reintegration, and the practical effects of the accumulated sentences.
For the Rosehill conspiracy offence (principal offence under s 112(2) of the Crimes Act 1900, maximum 20 years, standard non-parole period 5 years), the court fixed a non-parole period of three years commencing 6 May 2013, with a balance of sentence of three years. The court noted the standard non-parole period as a guidepost in the manner directed by Muldrock, rather than as a mandatory benchmark. The overall effective non-parole period across both sentences was four years and three months, with a balance of sentence of three years, producing a total term of seven years and three months.
Orders Made
- For the Rosehill conspiracy offence: non-parole period of three years, commencing 6 May 2013 and expiring 5 May 2016, with a balance of sentence of three years imprisonment.
- Effective total sentence: non-parole period of four years and three months, balance of sentence of three years, totalling seven years and three months imprisonment.
- Commencement of the effective sentence fixed from 6 February 2012.
- Special circumstances found in relation to both sentences, extending the period of potential parole supervision.
- Three Form 1 offences (taking and driving conveyances) taken into account in relation to the principal offence.
Key Takeaways
- Committing offences while on parole, particularly offences similar in character to those for which parole was granted, remains a significant aggravating factor under NSW sentencing law.
- Where a sentencing court already treats a parole breach as an aggravating factor, fixing the commencement date of the new sentence to run after the entire parole balance has been served risks "double dipping." The District Court addressed this by commencing the sentence partway through the revoked parole period.
- A 25 per cent discount for a guilty plea entered at the first reasonable opportunity was applied consistently with established principle, reflecting the utilitarian benefit of the plea.
- Following Muldrock v R [2011] HCA 39, the standard non-parole period operates as a legislative guidepost rather than a starting point or presumptive sentence, and the court applied it accordingly.
- Special circumstances permitting an adjustment to the non-parole to total sentence ratio can arise from accumulated sentences and the need for a longer supervisory period upon release, not only from individual offence-specific factors.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 112(2), 113(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4 Div 1A
Cases
- Callaghan v The Queen [2006] NSWCCA 58
- Muldrock v R [2011] HCA 39
- R v Ponfield (1999) 48 NSWLR 327
- R v Way (2004) 60 NSWLR 168
- Markarian v R (2005) HCA 25
- Zreika v R [2012] NSWCCA 44
- Osenkowski v R (1986) 5 A Crim R 394
- R v Blackman & Walters [2001] NSWCCA 121
- Kovacevic (2000) 111 A Crim R 131
- Yardley & Betts (1979) 22 SASR 108
- Henry v The Queen (1999) 46 NSWLR 346
- Attorney General's Application No 1 of 2002 (2002) 56 NSWLR 147