Citation: R v Grahovac [2012] NSWDC 299
Court: District Court of New South Wales
Date: 4 May 2012
Judge: Berman SC DCJ
Background
The offender pleaded guilty at an early stage to aggravated break, enter and steal. Two days after being released from a custodial sentence for a similar offence, he broke into residential premises in Erskineville at approximately 7am on a Sunday morning, knowing four people were inside asleep. He forced entry using a screwdriver, entered a bedroom, and was chased outside by a resident before being stopped and searched by police.
Police found two computers, a mobile phone, a personal digital assistant, a digital camera, jewellery, and cash, all taken from the premises. The offender had also been accepted onto a methadone program prior to release, but an administrative delay of 12 days in his actual release date caused his admission to be cancelled. He then self-medicated and committed the offence.
The offender was 40 years old with an extensive criminal history, having spent approximately half his life in custody. He had significant physical health problems including diabetes, a removed spleen and gallbladder, and ongoing pain from injuries suffered in a motor vehicle accident. A psychological report prepared for an earlier matter documented a highly dysfunctional upbringing, early drug use from age 14, and anxiety that worsened when he was in the community rather than in custody.
Legal Issues
- What sentence was appropriate for an aggravated break, enter and steal offence committed by a heavily institutionalised, repeat offender with significant personal mitigating circumstances?
- Whether the standard non-parole period of five years should be applied, and what reasons existed for departing from it.
- Whether the Form 1 offence of possessing a housebreaking implement should increase the sentence.
- Whether special circumstances existed to justify a non-parole period that is a greater proportion of the head sentence than the statutory default.
- How the competing sentencing objectives of general deterrence, preventative detention, and rehabilitation should be balanced.
Decision
His Honour applied a 25% discount to the sentence for the early guilty plea, recognising the utilitarian benefit to the criminal justice system. The court noted that the particular form of aggravated break, enter and steal committed here, entering premises knowing people were inside, sits at the lower end of the range of offences under section 112(2) of the Crimes Act, many of which also carry the same standard non-parole period of five years. The court also confirmed that the High Court's decision in Muldrock did not alter its earlier observations about the relative seriousness of offences within that category.
The court declined to treat the Form 1 offence of possessing a housebreaking implement as a basis for increasing the sentence. His Honour expressed some puzzlement that it had been included on the Form 1 at all, given its close factual connection to the principal offence, and expressly stated the offender would receive no additional penalty for it.
His Honour identified three relevant dimensions of community protection: general deterrence, preventative detention within the limits established by Veen (No 1) and Veen (No 2), and rehabilitation. The court observed that deterrence and preventative detention pulled toward a longer sentence, while the need for rehabilitation and community support pulled in the opposite direction. The offender's moral culpability was found to be significantly diminished because his drug addiction began in childhood rather than as an adult choice.
Special circumstances were found to exist, justifying a longer parole period than the default. The court pointed to the offender's profound need for structured, intensive supervision and support upon release, his history of rapid reoffending after unstructured releases, and the fact that the sentence was substantially cumulative on the sentence he had just finished serving. His Honour noted that without sustained corrective services support, including participation in programs such as Ngara Nura and work release, further reoffending was a near certainty.
Orders Made
- Non-parole period of four years, commencing 13 November 2011, with eligibility for parole release on 12 November 2015.
- Head sentence of seven years imprisonment.
Key Takeaways
- The District Court confirmed that not all offences under section 112(2) of the Crimes Act are equally serious, and that the particular aggravating circumstance of knowing occupants were present places an offence at the lower end of that category, which is a relevant consideration when assessing whether to impose the standard non-parole period.
- A Form 1 offence that is so factually intertwined with the principal offence that treating it as an aggravating matter would be unfair should not increase the sentence; the court here declined to treat the possession of the screwdriver as anything beyond part of the same criminal episode.
- Rehabilitation as a sentencing objective can operate directly against deterrence and preventative detention, and a sentencing court must weigh these competing purposes explicitly rather than treating any one of them as automatically dominant.
- Where an offender is deeply institutionalised, has limited capacity to function in the community, and faces the near-certainty of rapid reoffending without support, those factors can constitute special circumstances justifying a longer supervision period on parole.
- Under Veen (No 1) and Veen (No 2), a sentence may include a preventative component to protect the community, but that component must operate within recognised constraints and cannot simply be used to extend punishment beyond what the offence itself warrants.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), section 112(2) (aggravated break, enter and steal)
Cases:
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Veen v R (No 1) (1979) 143 CLR 458
- Veen v R (No 2) (1988) 164 CLR 465