Citation: R v Jarrod BRITT [2012] NSWDC 62
Court: District Court of New South Wales
Date: 15 February 2012
Judge: Cogswell SC DCJ
Background
The offender, a 21-year-old man with a minor criminal record, participated with two co-offenders in two aggravated break, enter and steal offences committed on the same night in August 2010. The group attended a Joyce Mayne store at Rutherford during trading hours to survey the premises, returned just before midnight to smash their way in, and stole cameras, mobile phones and flat-screen televisions. A couple of hours later, the same three broke into a Switchboard store at Glendale, stealing clothing, a wakeboard and cash.
Intercepted phone calls established that the co-offender Dylan Lang was the ringleader. The calls also revealed that the offender had been apprehensive during the offending. He pleaded guilty and expressed willingness to pay his share of assessed compensation, approximately $9,000 for property damage.
The offender gave evidence that significant personal losses, including the suicide of a close friend and the death of a nephew in the months before the offences, had left him emotionally low. A forensic psychiatrist diagnosed him with ADHD and concluded he likely met the criteria for adjustment disorder with depressed mood at the time of the offences.
Legal Issues
- What sentence was appropriate for two offences of aggravated break, enter and steal under s 112(2) of the Crimes Act 1900, each carrying a maximum of 20 years and a standard non-parole period of five years?
- How should parity with the co-offender's sentence be approached, given the differences in the offenders' criminal histories and circumstances?
- What weight should be given to the psychiatric evidence of ADHD and adjustment disorder?
- Was the offender suitable for referral for assessment for an Intensive Corrections Order rather than a conventional term of full-time imprisonment?
Decision
His Honour found the offending fell below the middle of the range of seriousness, notwithstanding a degree of premeditation. The group had spent roughly half an hour surveying the Joyce Mayne store hours before the break-in, which his Honour characterised as hours of planning rather than extended premeditation. The offender's minor criminal record (essentially a fine for stealing and a dismissed affray) was noted, as was the absence of any prior offending of this type.
On parity, his Honour referred to the sentence imposed by Blanch CJ on co-offender Lang: fixed terms of two years for each offence, staggered to produce an overall effective sentence of three years. Lang had a serious criminal record and had committed the offences while on conditional liberty. His Honour took those distinctions into account in favour of the offender.
The psychiatric evidence was given limited weight. His Honour accepted the diagnosis of ADHD and the likelihood of adjustment disorder with depressed mood at the time of the offences, framing the offending as driven more by an emotional reaction to grief and personal stressors than by a clinical mental health condition that substantially diminished responsibility. The personal losses suffered by the offender, the support of his family, his current stable employment, his early guilty plea, his expressed remorse, and his willingness to pay compensation all weighed in his favour. His Honour found his prospects of rehabilitation were good.
His Honour concluded that imprisonment was the only available sentencing alternative in principle, but considered whether that imprisonment could be served by way of an Intensive Corrections Order in the community. Proceedings were adjourned to allow for a formal suitability assessment.
Orders Made
- The offender was referred for assessment as to suitability for an Intensive Corrections Order under s 69(1) of the Crimes (Sentencing Procedure) Act 1999.
- The offender was directed to report to the Lake Macquarie Probation and Parole office by 4:00pm on 21 February 2012.
- Sentence proceedings were stood over to 5 April 2012 in Sydney.
- Bail was continued on existing conditions.
Key Takeaways
- The District Court applied the Muldrock framework in treating the standard non-parole period of five years as a guidepost rather than a starting point, weighing all relevant circumstances before fixing the appropriate sentence.
- Parity principles required the court to account for meaningful differences between co-offenders, including criminal history and whether offences were committed while on conditional liberty, even where the underlying conduct was the same.
- Psychiatric diagnoses of ADHD and adjustment disorder with depressed mood attracted limited mitigatory weight where the court characterised the offending as an emotional reaction to personal stressors rather than evidence of a condition substantially reducing moral culpability.
- An early guilty plea, genuine remorse, willingness to pay compensation, stable employment, a supportive family, and good rehabilitation prospects each operated as mitigating factors, collectively inclining the court toward a non-custodial form of imprisonment.
- Under s 69(1) of the Crimes (Sentencing Procedure) Act 1999, a court may refer an offender for an Intensive Corrections Order suitability assessment before imposing a final sentence, preserving flexibility where full-time custody is not yet formally ordered.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 112(2) (aggravated break, enter and steal)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 7, 9, 10, 67 and 69(1)
Cases
- R v Hemsley [2004] NSWCCA 228
- Muldrock v The Queen (2011) 85 ALJR 1154; [2011] HCA 39