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District Court 19 December 2013

R v Lake

[2013] NSWDC 315

Fraud & dishonestyTheft & property
CRIMINAL LAW SENTENCE AFTER CALL UP LARCENY FALSE EVIDENCE REGARDING REHABILITATION FORM 1 TAKEN INTO ACCOUNT

Citation: R v Lake [2013] NSWDC 315
Court: District Court of New South Wales
Date: 19 December 2013
Judge(s): Berman SC DCJ

Background

The offender pleaded guilty to break and enter with intent to steal in circumstances of aggravation, and larceny, with additional matters taken into account on a Form 1. The proceedings arose from a protracted sentencing history involving a section 11 bond (a remand to assess rehabilitation prospects) and a subsequent section 9 bond (a good behaviour bond imposed in lieu of imprisonment).

In March 2012, the court sentenced the offender on the section 11 remand. At that point, the court had received what appeared to be strong evidence of rehabilitation, including a favourable pre-sentence report, and imposed a section 9 bond. What the court did not know was that the offender had committed two further criminal offences on the very morning of that appearance.

The offender was later sentenced for those offences by another judge, and then committed further offences in February 2013. Those February offences constituted breaches of the section 9 bond, bringing the matter back before Berman SC DCJ for re-sentencing.

  • Whether a further custodial sentence was warranted given the breach of the section 9 bond, and if so, what its length should be.
  • How the principle of totality should apply across multiple overlapping sentences imposed by different courts.
  • Whether special circumstances existed justifying a longer parole period relative to the non-parole period.
  • What weight to give to rehabilitation, personal deterrence, and punishment in determining the appropriate sentence.

Decision

Berman SC DCJ found that a further period of custody was unavoidable. The court noted that, had the truth been known in March 2012, a custodial sentence would have been imposed at that time. The offender could not escape punishment simply because the court had been misled into imposing a bond instead.

The court recognised the offender's alcohol dependency as the root cause of his offending, and acknowledged that he had demonstrated the capacity to remain crime-free when sober. Personal deterrence was identified as a significant sentencing consideration, given the clear pattern of relapse followed by offending.

On totality, the court factored in the sentences already imposed by another District Court judge and a magistrate. The resulting sentence was moderated below what would ordinarily apply, in order to preserve meaningful opportunity for supervision on parole. Special circumstances were found to exist, both because of the accumulation of sentences and the need for close supervision upon release.

Orders Made

  • For break and enter with intent to steal in circumstances of aggravation: imprisonment with a non-parole period of 18 months, commencing 27 February 2014, and a head sentence of 3 years and 6 months.
  • For larceny: a fixed term of imprisonment of 12 months, commencing 27 February 2014.
  • Eligibility for release to parole: 27 August 2015.
  • Form 1 matters taken into account in the principal offence sentence.

Key Takeaways

  • A section 9 bond imposed in reliance on misleading evidence of rehabilitation does not insulate an offender from custodial punishment when the true position is later established.
  • Where an offender commits offences on the very day they appear before a court claiming rehabilitation, the court will treat the sentence it would have imposed at that time as a relevant benchmark for the current proceedings.
  • Personal deterrence carries significant weight in sentencing where an offender has a demonstrated pattern of alcohol-fuelled reoffending across multiple episodes.
  • The principle of totality required the District Court to account for sentences already imposed by other courts, moderating the ultimate sentence while still ensuring meaningful punishment.
  • Special circumstances may be established both by the fact of accumulation across multiple sentences and by the identified need for close post-release supervision of an offender with entrenched substance dependency.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9 (good behaviour bond in lieu of imprisonment)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 11 (remand for rehabilitation assessment)

Cases:
No cases were cited in the judgment text.