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District Court 6 December 2012

R v Togher

[2012] NSWDC 276

Fraud & dishonestyTheft & propertyPublic order & justice offences
CRIMINAL LAW SENTENCE FORM 1 AGGRAVATED ENTER WITH INTENT TAKE AND DRIVE CONVEYANCE BREACH OF BOND

Citation: R v Togher [2012] NSWDC 276
Court: District Court of New South Wales
Date: 6 December 2012
Judge(s): Berman SC DCJ

Background

The offender, a 29-year-old man with an extensive criminal history, appeared for sentencing on multiple offences committed in the Eastern Suburbs of Sydney. After relapsing into heroin use following a period of genuine rehabilitation, he entered an occupied home through an unlocked laundry window while the sole occupant slept. He stole a laptop, an iPad, the victim's handbag, and drove away both vehicles from the garage.

Using items found in the stolen handbag, the offender made purchases with the victim's ANZ Visa card at a nearby shopping centre. He was arrested shortly afterwards when police spotted him near Kings Cross railway station, in breach of a place restriction condition attached to an existing section 9 bond.

At the time of these offences, the offender had only recently been released from custody, where he had been on work release and had subsequently worked as a chef in regional Victoria. His return to Sydney and to old associates precipitated his relapse and the commission of these offences.

  • The appropriate sentence for aggravated entry with intent to commit a serious indictable offence, including the circumstance of aggravation and the nature of the intended offence
  • Whether Form 1 matters (the second vehicle theft and associated conduct) should be taken into account in sentencing
  • The weight to be given to the offender's drug addiction, background, and rehabilitation prospects as mitigating factors
  • Whether special circumstances existed to justify a variation in the standard ratio between the non-parole period and the head sentence

Decision

The court characterised the aggravated entry with intent as the most serious of the offences, noting that the circumstance of aggravation, namely the offender's knowledge that a person was inside the premises, represents one of the more serious forms of aggravation under the relevant provision. The court also observed, in partial mitigation, that the serious indictable offence committed was stealing, which it described as one of the less serious offences covered by the section.

Berman SC DCJ gave weight to the offender's difficult background, including his homelessness from age 14 following family breakdown, and his long-standing heroin addiction as the underlying driver of his offending. The court acknowledged the offender's demonstrated capacity to function productively during the periods he had been out of custody, including completing TAFE studies and working as a chef, while also noting that his prospects of rehabilitation could not be described as good given his history.

The court found special circumstances existed, citing two bases: the need for some accumulation of sentences, and the benefit to the community of an extended parole supervision period. The court expressed the view that a longer supervisory tail on parole would meaningfully increase the chance of the offender desisting from further offending, thereby reducing future victims.

Orders Made

  • Dishonestly obtaining money by deception: fixed term of 12 months imprisonment, commencing 21 March 2012
  • Take and drive conveyance without consent: fixed term of 12 months imprisonment, commencing 21 June 2012
  • Aggravated enter with intent to commit a serious indictable offence (with Form 1 matters taken into account): non-parole period of 18 months commencing 21 September 2012, with a head sentence of 3 years and 6 months
  • Overall sentence: non-parole period of 2 years, head sentence of 4 years
  • Earliest eligibility for parole: 20 March 2014

Key Takeaways

  • Knowledge that a person is present inside a premises at the time of entry constitutes one of the more serious forms of aggravation for an offence of aggravated entry with intent to commit a serious indictable offence.
  • Where the underlying serious indictable offence is stealing, this may operate as a relative mitigating factor in assessing the overall seriousness of the aggravated entry charge, even where aggravating circumstances are present.
  • A finding of special circumstances was made on two independent grounds: the structural need to accumulate sentences, and the rehabilitative benefit of an extended parole supervision period for an offender with a history of drug-related recidivism.
  • The District Court's reasoning reflects the principle that work release and supervised reintegration programmes serve a public interest in reducing reoffending, separate from any punitive function of imprisonment.
  • Long custodial histories, where an offender has lost the deterrent effect of imprisonment, do not preclude a finding that genuine rehabilitation prospects exist, particularly where the offender has demonstrated capacity to function productively outside custody.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 111 (aggravated enter with intent to commit serious indictable offence, maximum penalty 14 years)
- Crimes Act 1900 (NSW) provisions relating to take and drive conveyance without consent
- Crimes Act 1900 (NSW) provisions relating to dishonestly obtaining property by deception
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9 (good behaviour bond)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Form 1 procedure

Cases cited: None cited in the judgment text.