Citation: R v Glare [2014] NSWDC 298
Court: District Court of New South Wales
Date: 23 October 2014
Judge(s): Cogswell SC DCJ
Background
The offender, a 30-year-old married father of two young daughters, had been living a stable working life near Albury before being introduced to methamphetamine ("ice") by acquaintances. Within approximately 12 months, his drug dependence had driven him to commit seven serious break-and-enter offences, mostly targeting golf clubs, RSL and bowling clubs, a cafe, and a football club in regional New South Wales.
The offences were all connected to funding his drug habit. They involved breaking into premises either in company with accomplices or while acting as a lookout, and resulted in theft of cash, food, equipment, and other property. The offender was arrested on 1 April 2014 when police searched his home and found stolen goods. He had, notably, begun rehabilitation efforts before that final arrest, producing a clean drug test dated 25 March 2014.
The offender pleaded guilty at the earliest opportunity to all seven charges. A further 16 offences, including possessing housebreaking implements, receiving stolen property, larceny, and dealing with proceeds of crime, were placed on a Form 1 (a procedural mechanism allowing additional offences to be taken into account at sentencing without recording separate convictions).
Legal Issues
- What sentence was appropriate for seven serious offences under ss 112(2) and 113(2) of the Crimes Act 1900 (NSW), given their objective seriousness and the large number of offences?
- What weight should be given to the offender's personal circumstances, including his fall from good character, demonstrated remorse, and strong rehabilitation prospects?
- What discount applied for the early guilty plea, and whether any further discount was warranted?
- Whether special circumstances existed to justify adjusting the standard ratio between the head sentence and the non-parole period.
- How should the principle of totality apply given the sheer number of charges?
Decision
Cogswell SC DCJ found that all seven offences sat at the lower end of the range of objective seriousness, notwithstanding that four of them attracted a maximum of 20 years imprisonment and a standard non-parole period of five years. The aggravating feature common to all offences was that they were committed in company. The offences were also largely opportunistic, motivated by drug addiction rather than professional criminality, and the proceeds were modest.
The offender's personal circumstances were given substantial weight. He had no prior relevant criminal history, came from a strong and supportive family, had good employment qualifications, and had demonstrated genuine remorse and insight into his offending. The pre-sentence report assessed him as a low to medium risk of reoffending. The court accepted that his drug addiction, acquired in under 12 months, was the central cause of the entire course of offending.
A total discount of 40 per cent was applied to reflect the early guilty plea (attracting the standard 25 per cent discount for facilitating justice) and additional considerations under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The prosecution agreed to this combined discount. The principle of totality also operated to ensure the aggregate sentence reflected the overall criminality without resulting in a crushing outcome.
The court found special circumstances justifying a departure from the standard non-parole ratio. Because the offender was a first-time custodial prisoner with a genuine need for supervision and community-based rehabilitation on release, the non-parole period was reduced from the standard two years and three months (on a three-year head sentence) to 18 months. This extended the parole period to allow for greater oversight and support during reintegration.
Orders Made
- Head sentence of three years imprisonment, backdated to 30 March 2014, expiring 29 March 2017.
- Non-parole period of 18 months (reduced from the standard proportion due to special circumstances), with release to parole on 29 September 2015.
- Parole conditions imposed, including: reporting address to the Court Registrar, notifying any change of address, attending court if required, and submitting to supervision by Community Corrections Service.
- 16 additional offences taken into account on sentence via Form 1 certificates.
- Leave granted to the prosecutor to withdraw a backup offence under s 166 of the Criminal Procedure Act 1986 (NSW).
Key Takeaways
- A total sentencing discount of 40 per cent was available where an early guilty plea combined with additional considerations under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) both applied, and where the prosecution agreed to that combined figure.
- Special circumstances under the Crimes (Sentencing Procedure) Act 1999 (NSW) can justify extending the parole period beyond the standard ratio where an offender is serving their first custodial sentence and has a demonstrated need for community supervision and residential rehabilitation.
- The District Court applied the totality principle to a course of seven serious break-and-enter offences, ensuring the aggregate sentence was proportionate to the overall criminality rather than mechanically cumulative.
- Where drug addiction is the direct and short-term cause of an offender's entire criminal history, and the offender demonstrates genuine remorse and rehabilitation efforts, those factors carry significant mitigating weight even against objectively serious offences.
- Offences under s 112(2) of the Crimes Act 1900 (NSW) carry a maximum of 20 years imprisonment and a standard non-parole period of five years; offences under s 113(2) carry a maximum of 14 years with no standard non-parole period.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 112(2), 113(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 23, 50, 53A
- Criminal Procedure Act 1986 (NSW), s 166
Cases cited: None stated in the judgment.