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District Court 28 November 2014

R v Brandon Sharpley

[2014] NSWDC 253

Theft & property
CRIMINAL LAW AGGRAVATED BREAK AND ENTER ABORIGINAL OFFENDER YOUTH DEPRIVED BACKGROUND INTOXICATION

Citation: R v Brandon Sharpley [2014] NSWDC 253
Court: District Court of New South Wales
Date: 28 November 2014
Judge(s): Yehia SC DCJ

Background

The offender, an 18-year-old Aboriginal man from Walgett, appeared for sentencing on two counts of aggravated break, enter and steal. The offences occurred in the early hours of 11 December 2013 when he and his cousin broke into a local takeaway shop called Gourmet Foods, stealing soft drink and Powerade on two separate entries within the same night. The total value of the stolen property was modest: $18 worth of Lift soft drink on the first occasion, and cartons of Powerade valued at approximately $40 each on the second.

Both offences were captured on CCTV. The offenders made no attempt to conceal their identities. The offender was arrested in February 2014, made full and frank admissions in his police interview, cooperated fully with police, and named others involved. He pleaded guilty at Walgett Local Court in April 2014.

His co-offender and cousin, Brett Sharpley, had been sentenced separately in September 2014. During those proceedings, the court received unchallenged evidence about the socio-economic conditions affecting the Walgett Aboriginal community, and that evidence was also tendered in the present proceedings.

  • Whether the two offences fell at the lowest end of the range of objective seriousness for aggravated break, enter and steal
  • Whether any aggravating factors under the Crimes (Sentencing Procedure) Act 1999 or the Ponfield guideline applied to elevate objective seriousness
  • How principles from R v Fernando, Bugmy v The Queen, and related authorities applied to an Aboriginal offender from a deprived background
  • Whether an alternative to imprisonment was appropriate in all the circumstances, including youth, background, intoxication, and the low value and opportunistic nature of the offending

Decision

Her Honour found both offences at the very lowest range of objective seriousness. The first offence was an impulsive, intoxicated decision made while the offender and his cousin were walking past the shop. The second offence involved some degree of deliberation in returning to the same premises, making it slightly more serious than the first, but neither offence involved any meaningful planning, sophistication, organisation, or attempt to conceal identity. The property stolen was of very low value and was taken for personal consumption, not for profit.

Her Honour considered the guideline judgment in R v Ponfield and examined whether any of the factors that would elevate objective seriousness were present. None were, aside from the fact the offender was on bail at the time of the offences (for an assault matter that was subsequently dismissed). The court was careful not to treat the two entries into the same premises as a repeat incursion aggravating factor, given the Crown had charged them as two distinct offences.

On the subjective case, the court applied the principles in R v Fernando and the High Court's guidance in Bugmy v The Queen, which require sentencing courts to take into account the profound disadvantage and deprivation experienced by many Aboriginal offenders. Field officer evidence from the Aboriginal Legal Service painted a detailed picture of the entrenched socio-economic disadvantage, alcohol abuse, and violence in the Walgett Aboriginal community. The offender had grown up in Namoi Village, within that community, and the court accepted his background as a significant mitigating factor.

Her Honour concluded that the combination of very low objective seriousness, youth, deprived background, intoxication, full cooperation with police, and an early guilty plea meant that a non-custodial sentence was appropriate. The court expressly cited the risk that imprisonment of a young person at this stage could convert someone who would not otherwise become a confirmed criminal into one, a concern drawn from a passage cited in the judgment about the public interest in discriminating sentencing.

Orders Made

  • Count 1 (aggravated break, enter and steal): Good behaviour bond for two years under s 9 of the Crimes (Sentencing Procedure) Act 1999, commencing 28 November 2014, with conditions to be of good behaviour, to appear before the court if called upon, and to accept supervision by Community Corrections (reporting to the Bathurst office within seven days)
  • Count 2 (aggravated break, enter and steal): Community service order of 100 hours under s 86 of the Crimes (Sentencing Procedure) Act 1999, with the offender to report to the Bathurst office of Community Corrections within seven days

Key Takeaways

  • The District Court applied Bugmy v The Queen and R v Fernando to hold that the severe socio-economic deprivation experienced by an Aboriginal offender from a remote community is a weighty mitigating factor in sentencing, requiring careful individual assessment rather than a formulaic approach.

  • At the very low end of objective seriousness, where offending is opportunistic, intoxicated, unsophisticated, and involves low-value property, a sentencing court retains and exercised its discretion to impose non-custodial alternatives even for offences carrying a maximum of 20 years imprisonment and a standard non-parole period of five years.

  • Where two break and enter offences involve separate entries to the same premises charged as distinct counts, the court held it would be impermissible to treat those entries as aggravating "repeat incursions" within the meaning of the Ponfield guideline.

  • Youth combined with a background of deprivation and intoxication reduced moral culpability significantly, and the court noted that imprisoning a young offender in these circumstances risked entrenching criminality contrary to the public interest.

  • Full and frank admissions to police, cooperation in identifying co-offenders, an early guilty plea, and police observations of genuine remorse were all treated as substantial mitigating factors bearing on the appropriate sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(2) (aggravated break, enter and steal)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 21A, 86

Cases
- Bugmy v The Queen [2013] HCA 37
- R v Fernando (1992) 76 A Crim R 58
- R v Ponfield (1999) 48 NSWLR 327
- BP v R [2010] NSWCCA 159
- Hejazi v The Queen [2009] NSWCCA 282
- Kennedy v The Queen [2010] NSWCCA 260
- KT v R [2008] NSWCCA 51
- R v Blackman and Walters [2001] NSWCCA 121
- R v Lattouf (Court of Criminal Appeal (NSW), 12 December 1996, unreported)
- Locke v R [2010] NSWCCA
- R v Millwood [2012] NSWCCA 2
- Veen v The Queen (No. 2) (1988) 164 CLR 465
- Yardley and Betts (1979) 22 SASR 108