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District Court 29 June 2012

R v Gordon Joshua SIMPSON

[2012] NSWDC 268

Theft & property
CRIMINAL LAW PARTICULAR OFFENCES PROPERTY OFFENCES BREAK, ENTER AND STEAL SENTENCE RELEVANT FACTORS

Citation: R v Gordon Joshua Simpson [2012] NSWDC 268
Court: District Court of New South Wales
Date: 29 June 2012
Judge: Cogswell SC DCJ

Background

The offender, a 26-year-old Aboriginal man with a lengthy criminal history, appeared for sentencing on two charges of break and enter offences committed in August 2011. The first charge was aggravated break, enter and steal under s 112(2) of the Crimes Act 1900, arising from a daytime break-in at a Randwick home where the offender was found by the occupant while holding scissors and carrying stolen property valued at approximately $13,000. The second charge was break, enter and steal under s 112(1)(a), arising from a break-in at a Bondi Beach unit where jewellery was stolen and the unit was ransacked.

Both offences were committed while the offender was on parole. He left DNA at the Randwick scene and fingerprints and a mobile phone containing his photographs at the Bondi Beach scene, indicating a lack of planning or sophistication. Additional offences from two Form 1 lists were taken into account during sentencing, including three charges of remaining in a building with intent to steal and a further break, enter and steal.

The offender had been addicted to heroin since the age of 14 or 15. His criminal history dated from age 15 and included numerous convictions in the Children's Court and Local Court for similar offences, with previous custodial sentences imposed. He had strong family support, had engaged in prison rehabilitation programmes, and expressed a genuine desire to address his addiction through a residential facility.

  • What sentence was appropriate for the aggravated break, enter and steal offence, having regard to the standard non-parole period of five years under the Crimes Act 1900 and all relevant aggravating and mitigating factors?
  • What sentence was appropriate for the break, enter and steal offence?
  • Whether special circumstances existed justifying a reduction in the ratio between the non-parole period and the full term below the statutory default of one-third.
  • How to weigh the risk of institutionalisation and the offender's rehabilitation prospects against the need for general deterrence, specific deterrence, and community protection.
  • From what date the sentences should commence, given the offender's time in custody partly referable to a parole breach.

Decision

Cogswell SC DCJ characterised both offences as falling at the lower end of objective seriousness, notwithstanding the significant values of property stolen. The possession of scissors in the Randwick offence was treated as an aggravating feature, though the court accepted the offender had not intended to threaten the occupant when raising the scissors while removing his backpack. The absence of planning, the evidence left at both scenes, and the opportunistic nature of the offending all informed the assessment of objective seriousness.

In aggravation, the court noted the offences were committed while the offender was on parole, and that his criminal record heightened the need for specific deterrence and community protection. In mitigation, the court gave weight to the offender's guilty plea, his demonstrated engagement with prison rehabilitation programmes, his participation in programmes warning young people about drugs, his genuine desire to live drug-free, and strong family support. His evidence in court was described as impressive.

The court identified special circumstances warranting a departure from the standard non-parole to full-term ratio, reducing it to 50 per cent. The primary basis was the need for a substantial period on parole to allow the offender to attend a residential rehabilitation facility, specifically Benelong Haven in Kempsey. The court also acknowledged the real risk of institutionalisation, noting the offender's own observation that he found life in prison easier due to its routine and had struggled to adjust upon release. The sentence was deliberately described as lenient, with the court acknowledging the community bore the risk of that leniency.

The sentences were backdated to 1 January 2012, a date between the Crown's preferred commencement date of 12 February 2012 and the date of arrest on 29 August 2011, the court exercising its discretion on the commencement date.

Orders Made

• Sentence of 3 years and 9 months, backdated to 1 January 2012
• Non-parole period of 1 year and 11 months, commencing 1 January 2012, making the offender eligible for release on 30 November 2013
• No compensation order made

Key Takeaways

  • The District Court confirmed that special circumstances under the Crimes (Sentencing) Procedure Act 1999 can be established where a substantial period of supervised parole is needed to support attendance at a residential rehabilitation facility, justifying a non-parole to full-term ratio of 50 per cent rather than the standard two-thirds.
  • Committing offences while on parole is an aggravating factor that heightens the sentencing court's consideration of both specific deterrence and community protection, even where the offences are otherwise assessed at the lower end of objective seriousness.
  • Risk of institutionalisation, where supported by evidence including the offender's own testimony about difficulty adjusting to life outside custody, can be a relevant factor in structuring a sentence to maximise rehabilitation prospects upon release.
  • The absence of planning or sophistication, combined with significant quantities of evidence left at crime scenes, is capable of informing an assessment that break and enter offences fall at the lower end of objective seriousness even where the value of stolen property is substantial.
  • A guilty plea, authentic engagement with prison programmes, demonstrated insight into the causes of offending, and strong family support all operated as mitigating factors, and together contributed to a sentence the court itself characterised as lenient in the circumstances.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 112(1)(a) and 112(2)
- Crimes (Sentencing) Procedure Act 1999 (NSW), ss 32 and 53A

Cases:
- R v Ponfield (1999) 48 NSWLR 327; [1999] NSWCCA 435