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District Court 6 June 2013

R v Shailer

[2013] NSWDC 338

DrugsTheft & property
CRIMINAL LAW SENTENCE FORM 1 BREAK ENTER AND STEAL DRUG ADDICTION AS A MOTIVATING FACTOR

Citation: R v Shailer [2013] NSWDC 338
Court: District Court of New South Wales
Date: 6 June 2013
Judge: Berman SC DCJ

Background

The offender, a 36-year-old man with an extensive criminal history and a long-standing drug addiction, appeared for sentencing on three counts of break, enter and steal committed in May and June 2012. He also asked the court to take a fourth offence of break, enter and steal into account on a Form 1 (a procedural mechanism allowing related offences to be considered during sentencing without additional penalties being imposed). Two of the four offences were committed while the offender was on parole.

In each instance, the offender broke into commercial premises and took whatever was available, causing property damage in the process. The offences were motivated entirely by the need to fund a drug habit. The offender had left behind DNA or fingerprints at each scene, making identification straightforward. When confronted by police, he described the matter as an open and shut case and pleaded guilty at the earliest opportunity.

The offender had spent close to half his entire life in custody. Since his first custodial sentence, the longest continuous period he had spent outside gaol was just over a year. His upbringing was marked by instability, absent parental guidance, and the early loss of his primary carer. A psychologist's report noted his risk-taking personality and identified programs that could assist his rehabilitation.

  • What aggregate sentence was appropriate for three offences of break, enter and steal, accounting for a Form 1 offence, the commission of two offences on parole, and the principle of totality?
  • What discount applied in recognition of the offender's early guilty plea?
  • Whether special circumstances existed to justify adjusting the standard ratio between the non-parole period and the head sentence (in NSW, the non-parole period is ordinarily at least three-quarters of the head sentence; a court may depart from this where special circumstances exist).
  • What recommendations were appropriate regarding the offender's classification and rehabilitation pathways within the correctional system?

Decision

His Honour acknowledged that break, enter and steal of commercial premises, while serious, is generally regarded as less serious than the same offence committed against residential premises. Householders typically suffer both financial loss and significant emotional harm from the invasion of their home. The commercial nature of the premises here was a relevant, though not minimising, distinction.

Berman SC DCJ applied a 25 per cent reduction to the sentences for the early guilty plea. For the first offence (incorporating the Form 1 and reflecting the aggravation of offending on parole), his Honour identified a notional individual sentence of two and a half years. For the second and third offences, he identified notional individual sentences of two years each. Rather than impose those sentences separately, he imposed an aggregate sentence.

Special circumstances were found to exist, justifying a non-parole period that represented a lower proportion of the head sentence than would ordinarily apply. His Honour cited two reasons: the sentences were accumulative on unrelated sentences already being served, and the offender required an extended period of supervised parole with intensive rehabilitation support if the cycle of reoffending was to be broken.

His Honour expressed concern about the offender's E-classification, which arises from a prior escape offence. That classification significantly restricts access to rehabilitation programs and work release opportunities within the correctional system. His Honour made a firm recommendation that the classification be reviewed promptly and removed unless clear and demonstrable reasons existed for its continuation.

Orders Made

  • Aggregate sentence of five years imprisonment, with a non-parole period of two and a half years, commencing 5 January 2013.
  • Earliest eligible release to parole: 4 July 2015.
  • Recommendation that the offender be referred to the Compulsory Drug Treatment Correctional Centre program for assessment of suitability.
  • Recommendation that the offender's E-classification be reviewed and removed unless clearly justified.

Key Takeaways

  • The District Court confirmed that break, enter and steal of commercial premises warrants recognition as a less serious category of the offence than the residential equivalent, though it remains a serious matter carrying a significant custodial response.
  • An early guilty plea attracted a 25 per cent discount on the sentences that would otherwise have been imposed.
  • Special circumstances justifying an extended parole period can rest on more than one basis: accumulation of sentences is a relevant factor, but so is the demonstrated need for sustained post-release supervision and rehabilitation.
  • Where an offender's E-classification operates as a practical barrier to rehabilitation programs, a sentencing judge may make a formal recommendation that the classification be reviewed, even though the court has no power to direct the correctional authority on the point.
  • The decision illustrates the court's recognition that progressively longer custodial sentences alone do not address entrenched offending driven by drug addiction, and that effective parole conditions, including residential rehabilitation, may be necessary to protect future victims.

Legislation and Cases Referenced

No legislation or cases were cited in the judgment text or metadata.

Procedural mechanism referenced:
- Form 1 (the procedure under NSW criminal practice by which additional offences are taken into account on sentence without separate penalties being imposed)