Citation: R v Dejong; R v Tuimauluga; R v Puru; R v Zechel [2013] NSWDC 29
Court: District Court of New South Wales
Date: 29 January 2013
Judge(s): Berman SC DCJ
Background
In the early hours of 5 July 2011, four men broke into a residential home in Woodberry, NSW, while the occupants were asleep. Present in the home were an adult male, his girlfriend, her adult brother, and four children ranging in age from approximately two to ten years old.
The men were armed with a rifle, a knife, and a taser. They pointed the loaded rifle at the primary victim's head and, shortly afterwards, pressed the trigger with the barrel inches from his girlfriend's face (the weapon did not discharge). The invaders moved through the home demanding cash, drugs, phones, and laptops, struck the primary victim, threatened both adults with the taser, and ransacked the property before leaving with three laptops, approximately six mobile phones, several old iPods and USB sticks, and around $330 in cash.
All four offenders were apprehended shortly afterwards when police conducting a random breath test stopped a vehicle carrying three of them and discovered weapons and other incriminating items. The fourth was arrested separately. The offenders were sentenced jointly for the specially aggravated break, enter and steal offence, with individual differences in background, criminal history, and procedural circumstances producing variations in the final sentences.
Legal Issues
- What sentence was appropriate for each offender for the offence of specially aggravated break, enter and steal, having regard to the objective gravity of the offending?
- How should the presence of young children during the home invasion be weighed as an aggravating factor?
- To what extent did individual mitigating factors (including age, background, drug addiction, remorse, and guilty pleas) reduce the sentences otherwise warranted by the objective seriousness of the offence?
- Whether special circumstances existed in each case to justify departure from the standard non-parole period of seven years.
Decision
Berman SC DCJ described the offending as approaching the worst category for this type of offence. Although the physical injuries sustained were less severe than in some home invasions, the court emphasised the profound terror inflicted on the occupants through the pointed rifle, the trigger being pulled near the girlfriend's face, the live taser demonstration, and the sustained nature of the intrusion. The maximum penalty for specially aggravated break, enter and steal is 25 years imprisonment, carrying a standard non-parole period of seven years.
The presence of children was treated as a significant aggravating feature. The court rejected the suggestion that one offender's act of covering the youngest child's face demonstrated meaningful decency, finding that any such compassion was overwhelmed by the overall conduct of the group. The court noted that, on becoming aware children were present, common humanity should have caused the offenders to abandon the enterprise entirely.
Each offender was assessed individually. Factors considered across the group included age, cultural background, family circumstances, criminal history, drug addiction, remorse, and whether guilty pleas had been entered. The court acknowledged that drug addiction might explain the offending but held it could not significantly reduce the sentence, particularly where the motivation for the home invasion was to fund continued drug use. The court found special circumstances in each case, justifying non-parole periods above the standard minimum but with extended parole eligibility periods.
The court noted that no offender should feel aggrieved by comparison with a co-offender's sentence, given that individual subjective and procedural differences legitimately produced different outcomes.
Orders Made
- Tuimauluga: non-parole period of 8 years and 6 months, parole eligibility period of 4 years, commencing 21 November 2011.
- Zechel: non-parole period of 8 years, parole eligibility period of 4 years, commencing 10 November 2012.
- Puru: fixed term of 3 years for a break, enter and steal offence commencing 7 November 2011; non-parole period of 8 years with parole eligibility of 4 years and 6 months for the aggravated break, enter and steal offence commencing 8 July 2012, producing a total non-parole period of 9 years and a head sentence of 13 years and 6 months.
- Dejong: non-parole period of 8 years and 6 months, parole eligibility period of 4 years, commencing 4 October 2011.
Key Takeaways
- The District Court confirmed that home invasion offending conducted in the presence of young children is treated as a serious aggravating feature, and that the failure to abandon the offence upon becoming aware children were present reflects significantly on the offenders' culpability.
- A finding of special circumstances was made for each offender, justifying departure from the standard non-parole period and resulting in sentences with both extended head terms and extended parole eligibility periods.
- Where drug addiction is offered as context for serious offending, the court found it could explain conduct but could not substantially reduce the sentence, particularly where the offending was committed in order to sustain further drug use.
- Differences in sentence between co-offenders do not necessarily indicate error: the District Court confirmed that subjective and procedural differences between individual offenders legitimately produce different outcomes in a joint sentencing exercise.
- Offending that approaches the worst category for a given offence type warrants sentences that reflect the objective gravity of the conduct, regardless of whether the full maximum penalty is imposed.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW): offence of specially aggravated break, enter and steal (maximum penalty 25 years; standard non-parole period 7 years)
- Crimes (Sentencing Procedure) Act 1999 (NSW): s 9 bonds (referenced in metadata in relation to one offender's prior conditions at the time of offending); Form 1 procedure; special circumstances provisions
Cases cited:
No cases were cited in the portions of the judgment provided.