Citation: R v Brett Sharpley [2014] NSWDC 166
Court: District Court of New South Wales
Date: 12 September 2014
Judge: Judge Yehia SC DCJ
Background
The offender was a 19-year-old Aboriginal man who had grown up at Namoi Mission, a remote community near Walgett in north-western New South Wales. The court heard uncontested evidence about the profound social and economic deprivation affecting that community, including entrenched alcoholism, domestic violence, unemployment, low literacy rates, and limited access to services.
In the early hours of 11 December 2013, when the offender was 18 years old, he and his cousin broke into the storeroom of a takeaway food shop in Walgett, stealing a carton of soft drink valued at $18. Approximately one hour later, the two returned with two juvenile co-offenders and stole cartons of Powerade drinks, each valued at approximately $40. The offences were captured on CCTV and the offender was identified relatively quickly. He attended the police station voluntarily, participated in a record of interview, and provided some assistance by identifying his co-offenders.
The offender pleaded guilty in the Walgett Local Court to two counts of aggravated break, enter and steal under section 112(2) of the Crimes Act 1900. Each offence carries a maximum sentence of 20 years' imprisonment and a standard non-parole period of five years.
Legal Issues
- Whether the objective seriousness of the offences warranted a term of imprisonment
- How the principles in R v Fernando and the High Court's decision in Bugmy v The Queen applied to the assessment of the offender's moral culpability
- What weight to give to the offender's youth, background of social deprivation, intoxication at the time of the offences, and early guilty plea
- Whether any sentencing alternative to full-time imprisonment was appropriate given all the circumstances
Decision
Judge Yehia SC DCJ found that the offences fell at the very low end of objective seriousness. The items stolen were of minimal value, no weapons were involved, the premises were commercial rather than residential, and the offender's participation, while genuine, occurred in the context of severe intoxication and a background of profound disadvantage. The court placed significant weight on the evidence of Gary Trindall, a field officer with the Aboriginal Legal Service who had lived and worked in Walgett for approximately 35 years, whose account of conditions at Namoi Mission was uncontested.
Drawing on the Fernando principles and Bugmy, the court emphasised that individualised justice required a careful assessment of how the offender's social history bore on his moral culpability. The offender had grown up with alcoholic parents, witnessed regular domestic violence, been expelled from school, and begun drinking at age 13. The court accepted that intoxication, while not an excuse, reduced his moral culpability in the particular circumstances of this case, consistent with the principles in Bugmy.
The court also gave credit for the early guilty plea, the offender's cooperation with police, his youth and relative lack of prior adult convictions, and what the court assessed as genuine prospects of rehabilitation. Having considered all available alternatives, the court was not satisfied that full-time imprisonment was the only appropriate penalty.
Orders Made
- Count 1 (aggravated break, enter and steal): Section 9 good behaviour bond for two years from 12 September 2014, with conditions including good behaviour, appearance before the court if called upon, supervision by Community Corrections, and reporting to the Coonamble office of Community Corrections within seven days.
- Count 2 (aggravated break, enter and steal): Community service order for 100 hours, with the offender directed to report to the Coonamble office of Community Corrections within seven days to commence the order.
Key Takeaways
- The District Court confirmed that individualised justice requires a sentencing court to assess the moral culpability of an Aboriginal offender in light of demonstrated social and economic deprivation, consistent with the High Court's decision in Bugmy v The Queen and the Fernando principles established in the New South Wales Court of Criminal Appeal.
- Community disadvantage is not treated as an excuse or a mitigating factor in isolation; rather, it forms part of the holistic assessment of the offender's moral culpability and is relevant to how much weight the various purposes of sentencing should bear in each individual case.
- Even where offences carry substantial maximum penalties and a legislated standard non-parole period, a sentencing court may find that the offences fall at the very low end of objective seriousness and that full-time imprisonment is not the only appropriate penalty.
- Uncontested expert evidence from a community field officer with direct, long-standing knowledge of the relevant Aboriginal community was treated as a significant and legitimate foundation for the court's findings about the nature and extent of that community's disadvantage.
- Youth, early guilty pleas, cooperation with police, and genuine prospects of rehabilitation remained relevant and weighty considerations even where general and specific deterrence would ordinarily call for a period of custody.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 86
- Children's (Criminal Procedure) Act 1987 (NSW)
Cases:
- Bugmy v The Queen [2013] HCA
- R v Fernando (1992) 76 A Crim R 52
- Muldrock v The Queen [2011] HCA 39
- Markarian v R [2006] HCA 25
- Munda v Western Australia [2013] HCA 38
- Neal v R (1982) 149 CLR 305
- R v Ponfield & Ors (1999) 48 NSWLR 327
- BP v R [2010] NSWCCA 159
- Blackman v Waters [2001] NSWCCA 121
- R v Clifford [2008] NSWCCA 190
- R v Millwood [2012] NSWCCA 2
- Latouf (NSWCCA, 12 December 1996)
- Fuller-Cust v The Queen (2002) 6 VR 496
- Yardley v Bates (1979) 22 SASR 108