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District Court 26 April 2013

R v Gowans

[2013] NSWDC 284

Theft & property
CRIMINAL LAW SENTENCE FORM 1 BREAK ENTER AND STEAL STEAL FROM A DWELLING ON PAROLE AT TIME OF OFFENCE

Citation: R v Gowans [2013] NSWDC 284
Court: NSW District Court
Date: 26 April 2013
Judge(s): Berman SC DCJ

Background

The offender had appeared before the sentencing judge in August 2012, charged with aggravated entry of a dwelling with intent to commit larceny while knowing a person was inside, an offence committed on 15 December 2011 while she was on parole. At that earlier stage, the judge formed the view that rehabilitation offered the best prospect of protecting the community, and the offender was released on a section 11 remand under the Crimes (Sentencing Procedure) Act to attend a residential rehabilitation program.

The offender failed in two successive rehabilitation placements. She was excluded from the first program for breaching its rules, and on 24 November 2012, while attending a second program, she took drugs following an argument with her boyfriend and proceeded to commit a series of property offences across multiple premises in the same neighbourhood over roughly 90 minutes.

Those further offences included break, enter and steal at two separate dwellings, stealing from a dwelling, damaging property (removing and cutting flyscreens), and attempted entry of further premises. The offender was arrested by police later that evening with property stolen during the course of the offending.

  • What aggregate sentence was appropriate given the number and nature of the offences, including consideration of two Form 1 matters (offences taken into account on sentence without separate conviction)?
  • What weight should be given to the offender's background, drug addiction, and documented depression, including the principle from R v Fernando concerning Indigenous offenders and substance abuse?
  • How should the aggravating factor of being on parole at the time of the December 2011 offence be reflected without resulting in double punishment when selecting the sentence commencement date?
  • How should the totality principle govern the structure of accumulated sentences?

Decision

The judge noted that the offender's background was chaotic, including a childhood in the Redfern area marked by the absence of adequate parental supervision. The offender's depression was documented and accepted. Consistent with the principle in R v Fernando, the judge reduced the emphasis on general deterrence given the offender's mental health, and acknowledged that the custodial sentence would weigh more heavily upon her as a result.

Despite those mitigating considerations, the judge found that the offender had demonstrated a continuing attitude of disobedience towards the law. She had committed the December 2011 offence while on parole, and then reoffended extensively while on a rehabilitation remand, fully aware of her propensity to commit offences under the influence of drugs. The judge placed ultimate responsibility on the offender for her decision to take drugs on 24 November 2012.

The judge adopted an aggregate sentencing approach to avoid exceeding what was appropriate under the totality principle, which guards against cumulative sentences that are disproportionate to the overall criminality involved. The offender received a 25 percent discount on sentences for all offences because she had pleaded guilty at an early opportunity.

Regarding the commencement date, the judge was careful not to double count the aggravating factor of being on parole. The Crown had raised matters suggesting parole had been revoked for reasons other than the December 2011 offence, but because the position was unclear, the judge resolved the uncertainty in the offender's favour and commenced the sentence on 24 March 2012.

Orders Made

  • Aggregate sentence imposed consisting of a non-parole period of three years commencing 24 March 2012, with a head sentence of five years.
  • The offender was made eligible for release to parole on 23 March 2015.

Key Takeaways

  • The District Court confirmed that where an offender has documented depression, the principle in R v Fernando supports reducing the weight given to general deterrence and recognising that custody will bear more heavily on that person.
  • A continuing pattern of reoffending, including breaching parole and a rehabilitation remand, was treated as a significant aggravating feature reflecting an ongoing attitude of disobedience towards the law.
  • Aggregate sentencing is an available mechanism to ensure the combined effect of multiple sentences does not exceed what the totality principle permits.
  • Where ambiguity existed about whether an aggravating factor (here, being on parole) had already influenced another aspect of sentence, the court resolved that ambiguity in the offender's favour to avoid double punishment.
  • Early guilty pleas attracted a 25 percent sentence reduction across all matters, including those committed on 24 November 2012.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act (NSW), s 11 (bail remand for rehabilitation purposes)

Cases:
- R v Fernando (1992) 76 A Crim R 58 (principles governing sentencing of offenders whose background includes factors such as substance abuse and social disadvantage)