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District Court 15 June 2012

R v Cornwall

[2012] NSWDC 183

Theft & property
CRIMINAL LAW SENTENCE IN COMPANY

Citation: R v Cornwall [2012] NSWDC 183
Court: District Court of New South Wales
Date: 15 June 2012
Judge(s): Berman SC DCJ

Background

The offender, a young man aged approximately 18 to 19 at the time of the offences, pleaded guilty at an early stage to three counts of break, enter and steal targeting two primary schools in regional New South Wales. Two counts carried the aggravating circumstance of being committed in company. The offender, a former student of both schools, targeted computer and electronic equipment, taking items including a large flat-screen television, computer hard drives, and peripheral equipment.

The offences occurred across three separate incidents in January 2011. On the first occasion, the offender and a juvenile co-offender broke into Weston Primary School's IT room and removed equipment. The offender returned alone days later through a window he had left unlocked. A third incident at Kurri Kurri Public School was interrupted by police after a security alert.

The offender co-operated with police, made admissions, and directed investigators to stolen property. His co-offender and the adult getaway driver each received 100 hours of community service. The sentencing court was asked to determine the appropriate penalty for the offender, taking into account his personal circumstances, neurological diagnoses, prior custody experience, and prospects for rehabilitation.

  • What sentence was appropriate for three counts of break, enter and steal (two aggravated by being in company), carrying maximum penalties of 20 years (aggravated) and 14 years (unaggravated)?
  • Whether the standard non-parole period of five years for the aggravated offences should be applied or departed from.
  • Whether a suspended sentence was adequate punishment in the circumstances.
  • Whether an Intensive Corrections Order (ICO) was an appropriate alternative to full-time custody.

Decision

Berman SC DCJ described the offender as unusually candid and assessed him as genuinely remorseful. The court accepted that the offender had not fully appreciated, at the time of the offences, the serious harm caused to the school community, particularly given that the IT room had been built with Federal Government funding to benefit a disadvantaged area and remained out of service for six to seven months.

The court gave significant weight to the offender's personal circumstances. He had been diagnosed with Tourette's syndrome and was also assessed as possibly having Asperger's syndrome or high-functioning autism. His conduct in the witness box reinforced the court's view that he would be considerably more vulnerable in prison than an ordinary offender. His prior experience on remand, during which he was placed on protection and subjected to threats and mistreatment from other prisoners who wrongly assumed he was a sex offender, was treated as a relevant and sobering consideration.

His Honour found that a suspended sentence would be insufficient punishment given the seriousness of the offending, particularly as the offender had continued to offend while on bail for these matters. The court determined that a sentence of imprisonment of two years or less was appropriate and concluded that the matter should be referred for assessment for an Intensive Corrections Order. A final sentence was to be determined following receipt of the suitability assessment.

The court noted the principle of parity in passing, observing that the co-offender and the adult driver received community service orders, but found this was not a basis for parity given their considerably lower levels of involvement.

Orders Made

  • The offender was referred for assessment as to his suitability to serve a sentence of imprisonment by way of an Intensive Corrections Order.
  • The offender's bail was continued pending the assessment.
  • A transcript of the remarks on sentence was ordered.
  • A matter on the Section 166 certificate was dismissed at the Crown's request.
  • The matter was listed for further mention on 24 August 2012.

Key Takeaways

  • The District Court declined to impose the standard non-parole period of five years for aggravated break, enter and steal, finding the offender's personal circumstances, early guilty plea, co-operation with police, and neurological conditions warranted departure from the standard.
  • Vulnerability in custody is a sentencing consideration: the court's assessment that the offender would be exposed to significantly harsher treatment than ordinary prisoners, based on his diagnosed conditions and prior experience on remand, factored into the sentencing outcome.
  • A suspended sentence was held to be insufficient punishment for three counts of break, enter and steal in circumstances where the offending was deliberate and the offender had continued to offend while on bail.
  • Genuine remorse, though not always simple to establish, was found to be demonstrated in part by the offender's honest acknowledgment that he could not guarantee future compliance, rather than offering a rehearsed assurance.
  • An Intensive Corrections Order was treated as a meaningful punitive option distinct from a suspended sentence, with the court emphasising the curfew, supervision, and compliance requirements involved.

Legislation and Cases Referenced

Legislation:
- No specific legislation was cited in the provided text, though the offences and standard non-parole periods referenced correspond to provisions of the Crimes Act 1900 (NSW) and the Crimes (Sentencing Procedure) Act 1999 (NSW).

Cases:
- No cases were cited in the provided text.