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District Court 1 November 2012

R v Chidgey-Politis; R v Dalby; R v Reddy; R v Eldridge

[2012] NSWDC 231

DrugsTheft & propertyFirearms & weapons
CRIMINAL LAW SENTENCE BLOWING UP AUTOMATIC TELLER MACHINES BREAK ENTER AND STEAL IN COMPANY SUPPLY PROHIBITED DRUGS

Citation: R v Chidgey-Politis; R v Dalby; R v Reddy; R v Eldridge [2012] NSWDC 231
Court: District Court of New South Wales
Date: 1 November 2012
Judge(s): Berman SC DCJ

Background

Four offenders appeared together for sentencing in connection with a scheme to steal money from automatic teller machines by physically destroying them with explosives. The method involved blowing apart the ATMs, causing significant damage not only to the machines themselves but also to surrounding premises, and creating serious risk to members of the public. The offences were committed across early to mid-2009, with police establishing a dedicated task force after identifying the pattern of offending.

Each offender played a different role in the enterprise. One acted primarily as a lookout, another was more deeply involved in the physical commission of the offences, and the participants varied in their criminal histories, ages, and the number of offences for which they were individually liable. A fifth co-offender, referred to as King, had been sentenced separately by another judge at an earlier time.

The offences before the court included break, enter and steal in company, conspiracy to commit those offences, and supply of prohibited drugs. The total cash stolen across the relevant offending ran to hundreds of thousands of dollars, with total damage caused exceeding that figure substantially.

  • What sentences were appropriate for each of the four offenders, having regard to the objective seriousness of the offences, the individual subjective circumstances of each offender, and the need for consistency without unjustifiable disparity?
  • Whether the standard non-parole periods applicable to certain offences should be imposed, or whether reasons existed to depart from them.
  • How to treat the "in company" aggravating circumstance where the offenders had deliberately ensured no members of the public were present during the offences.
  • How to approach the significant pre-sentence custody served by at least one offender, given the unusually long delay between arrest and sentencing.
  • Whether any offenders were appropriate candidates for referral to the Compulsory Drug Treatment Program.

Decision

His Honour identified several general principles applicable across the group. Although the "in company" feature provided statutory aggravation, it added comparatively little to the overall criminality in this context because the offenders had deliberately operated when no victims were present, removing the usual concern about confrontation and the risk of physical harm to bystanders. The court also noted that break and enter offences covering larceny sit at the lower end of the range of indictable offences that can underlie such charges.

On the standard non-parole periods, Berman SC DCJ declined to impose them in any of the matters, giving reasons within the sentencing remarks rather than applying them as a default. The court was alert to the maximum penalties and the standard non-parole periods as reference points, but the individual circumstances of each offender justified departure in each case.

Reddy's position attracted particular comment. He had spent over three years in pre-sentence custody for an offence that ultimately resulted in no completed ATM theft, the plan having been abandoned when police surveillance was detected. The court described this pre-sentence delay as "astounding" and "disturbing," noting that a first-time prisoner should not be held for so long awaiting trial and sentence in the District Court. By the time the sentence was imposed, the court had already granted him bail, and the conclusion reached was that immediate release was appropriate.

For the remaining three offenders, substantial sentences were imposed, cascaded in sequence to reflect the multiple offences. Dalby and Eldridge, who had the most extensive involvement and the greatest number of offences, received effective sentences of nine years and nine and a half years respectively, each with non-parole periods reflecting their individual histories, drug dependency, and the seriousness of the overall criminal enterprise.

Orders Made

  • Reddy: Sentenced for conspiracy to break, enter and steal in company. Released on bail pending formal completion of the sentencing process. (Specific term not reproduced in the provided text.)
  • Chidgey-Politis: Effective sentence of five years, with a non-parole period of two and a half years dating from 2 November 2011. Eligible for release to parole on 1 May 2014.
  • Dalby: Effective sentence of nine years with a non-parole period of six years. Individual counts sentenced as fixed terms and concurrent/cumulative parole periods cascading from 13 August 2009. Eligible for parole on 12 August 2015. Referred for assessment for the Compulsory Drug Treatment Program at Parklea Gaol.
  • Eldridge: Effective sentence of nine and a half years with a non-parole period of six and a half years. Counts cascading from 13 August 2009. Eligible for parole on 12 February 2016.
  • Section 166 matters dismissed in each case.
  • Ten supply charges replaced by a single charge on an ex-officio indictment.

Key Takeaways

  • The "in company" aggravating circumstance carries less weight where the offenders deliberately ensured no members of the public were present, because the feature's usual rationale, protecting victims from confrontation and multiple assailants, does not arise in the same way.
  • Significant disparity in sentences across co-offenders is justified, and may be necessary, where the offenders' roles, criminal histories, subjective circumstances, and the number of offences differ materially.
  • Prolonged pre-sentence custody, in this case more than three years for one offender, is a substantial factor in sentencing and directly influenced the outcome for the offender concerned. The District Court expressed clear concern that such delays are unacceptable for a person not previously imprisoned.
  • Standard non-parole periods serve as reference points rather than automatic outcomes; the sentencing court must give reasons for departing from them, and individual circumstances can justify doing so.
  • Where drug dependency is identified as a background factor, referral to the Compulsory Drug Treatment Program is available as part of the sentencing regime.

Legislation and Cases Referenced

Legislation:
- Provisions creating the offence of break, enter and steal in company (maximum penalty: 20 years' imprisonment; standard non-parole period: 5 years)
- Provisions relating to supply of prohibited drugs
- Section 166 of the relevant criminal procedure legislation (charges dismissed under this provision)

Cases:
No cases were cited in the metadata or in the portions of the judgment provided.

Note: The judgment metadata states no legislation or cases were formally cited. The legislative references above are drawn from the text of the sentencing remarks themselves.