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District Court 1 February 2012

R v Mitchell PERRINGTON

[2012] NSWDC 55

Theft & property
CRIMINAL LAW SENTENCE RELEVANT FACTORS RESPONSE TO CHARGES CONTRITION MADE PROVISION FOR COMPENSATION

Citation: R v Mitchell Perrington [2012] NSWDC 55
Court: District Court of New South Wales
Date: 1 February 2012
Judge(s): Cogswell SC DCJ

Background

The offender, a man aged approximately 22 at the time of the offence, pleaded guilty to aggravated break, enter and steal under s 112(2) of the Crimes Act 1900. Together with co-offenders, he entered the home of two elderly residents in Windale, ransacked it, and stole items including an air rifle, mobile phones, a camera, food, and alcohol. The victims were asleep upstairs during the break-in; their adult daughter discovered the burglary after receiving an abusive phone call made from one of the stolen phones.

The offender had a prior record of break, enter and steal convictions, for which he had previously received good behaviour bonds on multiple occasions in the Local Court. He had a long history of drug and alcohol dependency beginning in early adolescence, and a significantly dysfunctional upbringing marked by domestic violence and family instability.

When arrested approximately a month after the offence, the offender cooperated with police and offered substantial assistance to authorities. He spent six weeks on remand at Cessnock Prison before being granted bail, after which he completed a three-month residential drug and alcohol rehabilitation program at The Glen Centre.

  • What sentence was appropriate for aggravated break, enter and steal under s 112(2) of the Crimes Act 1900, having regard to the standard non-parole period of five years and the objective seriousness of the offence?
  • What weight should be given to the offender's guilty plea, remorse, assistance to authorities, rehabilitation efforts, and personal background?
  • Whether a suspended sentence under s 12 of the Crimes (Sentencing Procedure) Act 1999 was available and appropriate, given the offender's prior bonds under s 9 of the same Act.
  • How to calculate pre-sentence custody, including whether time spent in the residential rehabilitation program should be treated similarly to time in custody.

Decision

Cogswell SC DCJ assessed the objective seriousness of the offence as below the middle of the range. Both the prosecution and the defence accepted this characterisation. The planning involved was limited, and the offending occurred in the context of significant drug and alcohol use, though neither factor eliminated the gravity of the intrusion into an elderly couple's home.

The court attributed considerable weight to a number of mitigating factors: the early guilty plea, the offender's genuine and demonstrated remorse (including setting aside money toward compensation of approximately $2,200), his cooperation with police and continued willingness to give evidence against co-offenders, and his completion of the residential rehabilitation program at The Glen Centre. The Probation and Parole report described the offender as potentially having reached a watershed moment, and the court found his prospects of rehabilitation to be good.

His Honour accepted that the six weeks served in custody on remand constituted pre-sentence custody. The court also accepted the defence submission that approximately 50 per cent of the time spent in the residential rehabilitation program at The Glen Centre could be treated as equivalent to pre-sentence custody, given its strictly residential nature.

Taking all factors into account, the court imposed a total sentence of two years imprisonment, suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999, on condition that the offender enter a good behaviour bond. His Honour emphasised to the offender in clear terms that a breach of a suspended sentence operates very differently from a breach of an ordinary good behaviour bond, and that re-imprisonment would follow almost automatically upon any breach.

Orders Made

  • Total sentence of two years imprisonment imposed.
  • Sentence suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999, on the offender entering into a good behaviour bond for two years.
  • Pre-sentence custody acknowledged, comprising six weeks on remand and a proportion of time spent in residential rehabilitation.

Key Takeaways

  • The District Court treated time spent in a strictly residential drug and alcohol rehabilitation program as partially equivalent to pre-sentence custody, allowing approximately 50 per cent of that period to count toward the sentence calculation.
  • A suspended sentence under s 12 of the Crimes (Sentencing Procedure) Act 1999 remained available even where an offender had previously received multiple s 9 good behaviour bonds, provided the sentencing court was satisfied the circumstances warranted that approach.
  • Genuine, demonstrated remorse, including taking concrete steps toward compensation before sentencing, was treated as a significant mitigating factor.
  • Assistance provided to authorities at the time of arrest, combined with a continued willingness to give evidence against co-offenders, contributed meaningfully to the reduction of the sentence.
  • Where a co-offender was dealt with in the Children's Court, the District Court noted that strict parity principles did not apply, given the different sentencing frameworks applicable to juvenile and adult offenders.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(2) (aggravated break, enter and steal; maximum penalty 20 years; standard non-parole period 5 years)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9 (good behaviour bonds) and s 12 (suspended sentences)

Cases: No cases were cited in the judgment.