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District Court 31 May 2013

R v Steele; R v Mahoney

[2013] NSWDC 288

Theft & property
CRIMINAL LAW PARTICULAR OFFENCE BREAK, ENTER AND STEAL SENTENCE RELEVANT FACTORS GRAVITY OF OFFENCE

Citation: R v Steele; R v Mahoney [2013] NSWDC 288
Court: District Court of New South Wales
Date: 31 May 2013
Judge: Cogswell SC DCJ

Background

On 14 February 2012, one offender broke into a residential property in Kingsford during daylight hours, stealing an Xbox console and games, jewellery, watches, cologne, and currency. He was observed shortly afterwards hiding items near a car, the registration of which was traced to his co-offender, who had apparently been driving. Police subsequently recovered most of the stolen property, with only approximately $1,000 in Australian currency and an iPod remaining unaccounted for.

The first offender, aged 23 at the time of sentencing, pleaded guilty to break, enter and steal under s 112(1) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 14 years imprisonment. He had an extensive record beginning in the Children's Court and had been on a good behaviour bond and bail when the offence was committed. The second offender, aged 51, ultimately pleaded guilty to the lesser charge of accessory after the fact to break, enter and steal, which carries a maximum of 5 years imprisonment. He had offered to enter this plea at a much earlier stage, but that offer had initially been rejected by the Office of the Director of Public Prosecutions.

Both men had long histories of heroin dependence dating from their teenage years, significant prior criminal records, and complex personal circumstances. Each had a pre-sentence report prepared, and the second offender was also the subject of a forensic psychological assessment.

  • What sentences were appropriate for each offender, having regard to the nature and gravity of their respective offences?
  • How should the offenders' substantial substance abuse histories, mental and physical health issues, and prospects for rehabilitation affect the sentencing exercise?
  • What weight should be given to the timing of each guilty plea, including the earlier offer to plead by one offender that was initially rejected by the prosecution?
  • Whether non-custodial or partially non-custodial sentencing options, including community service and intensive correction orders, were appropriate given each offender's circumstances?

Decision

His Honour found the offending fell in the lower half of the range of seriousness for burglaries, a concession made by the prosecution and accepted by the court. The fact that most of the stolen property was recovered also weighed in the offenders' favour, though the commission of the offence while on conditional liberty (in the first offender's case, on a good behaviour bond and on bail) was treated as an aggravating factor.

The younger offender's late guilty plea attracted only a modest discount, assessed by the prosecution as appropriate in the range of 5 to 10 per cent. His Honour nonetheless acknowledged significant mitigating factors, including his expressed remorse, his continued engagement with the methadone program while in custody, and the support of his partner and aunt. The court noted that he had never held employment and that ongoing supervision through parole and an intensive correction order would be critical to any prospect of rehabilitation.

For the older offender, His Honour took into account the forensic psychologist's findings of major depression, an anxiety disorder, and a poly-substance abuse disorder, as well as physical health problems including a back and shoulder injury and epilepsy. An initial probation report had assessed him as unsuitable for community service, but an updated report, informed by a current medical assessment, revised that view. The court accepted that a community service order would serve a therapeutic function for this offender.

Both offenders received sentences reflecting the need for rehabilitation alongside appropriate punishment, with the court emphasising the role of the Probation and Parole Service in supervising each man's drug use and reintegration.

Orders Made

• Order directing the offender's release on parole
• Condition that the offender be of good behaviour
• Condition that the offender notify the Registrar of any change in residential address
• Condition that the offender attend Court if receiving a notice to do so
• Condition that the offender accept supervision from the Probation and Parole Service and comply with reasonable recommendations and directions, particularly regarding illicit drug issues and vocational skills
• Condition that the offender attend the Probation and Parole Service at Wentworth Avenue before Friday 7 June 2013

Note: The published text records the court's oral reasons and some directions, including a requirement that the first offender report to the Probation and Parole Service at Wentworth Avenue by 7 June 2013, and references to an intensive correction order being made. Full formal orders are not reproduced in the available text.

Key Takeaways

  • The District Court confirmed that offending while on conditional liberty (including bail and a good behaviour bond) is a significant aggravating factor in sentencing, even where the underlying offence falls in the lower range of seriousness for its type.

  • A late guilty plea attracted only a limited sentencing discount, with the prosecution's suggested range of 5 to 10 per cent accepted as appropriate by the court.

  • Where a defendant makes an early offer to plead guilty to a lesser charge and that offer is initially rejected by the prosecution, the circumstances surrounding the timing of the eventual plea require careful consideration at sentencing.

  • Long and entrenched histories of substance abuse, while not excusing criminal conduct, remained relevant to the court's assessment of each offender's prospects of rehabilitation and the sentencing options best suited to addressing reoffending risk.

  • Probation reports are not static documents: an updated assessment that revised an earlier finding of unsuitability for community service was accepted by the court, illustrating that a second report informed by current medical evidence can materially affect the available sentencing options.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(1) (break, enter and steal; maximum 14 years imprisonment)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9 (good behaviour bonds), s 50 (community service orders), s 86 (intensive correction orders)

Cases cited: None cited in the judgment.