Citation: R v Gaul [2014] NSWDC 306
Court: District Court of New South Wales
Date: 18 December 2014
Judge: Cogswell SC DCJ
Background
The offender pleaded guilty to aggravated break, enter and steal, an offence carrying a maximum penalty of 20 years imprisonment and a standard non-parole period of five years under the Crimes Act 1900 (NSW). The aggravating feature was that the offender committed the offence in company with a co-offender.
In the early hours of 14 June 2014, the offender and his partner broke into a communal laundry at a unit block in Botany by climbing through a window. The offender passed household items belonging to residents out through the window to his co-offender, who stacked them in the backyard. A resident observed the pair, confronted them, and called police. The offender was found on the scene with a backpack containing property belonging to residents.
At the time of the offence, the offender was on bail for other matters. His bail was revoked upon arrest, and he had been in custody since 14 June 2014, approximately six months by the time of sentence. He also asked the court to take into account two additional offences on a Form 1: possessing housebreaking implements and goods in custody.
Legal Issues
- What sentence was appropriate for aggravated break, enter and steal, given the offender's plea of guilty, criminal history, personal circumstances, and time spent in custody?
- What weight should be given to the offender's longstanding drug and alcohol dependency, diagnosed mental health condition, and demonstrated remorse?
- Whether the conditions for a suspended sentence under s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW) were met, and what reasons supported such an order?
Decision
The court accepted that the offence was serious, noting Parliament's designation of it as such through the high maximum penalty and standard non-parole period. However, the court weighed several mitigating factors carefully. The offender had no prior convictions for similar offences, had pleaded guilty at the earliest opportunity attracting a 25% discount, and had spent approximately six months in pre-sentence custody, which the court took into account.
The offender's personal circumstances received substantial consideration. Medical and psychological evidence established a longstanding dependency on alcohol and prohibited drugs, a diagnosed schizoaffective psychosis, and a troubled childhood. The court accepted his evidence of remorse as genuine, noting his visible distress in the witness box and his acknowledgment of shame regarding the offence. His experience of custody, including being assaulted and placed in protection, had clearly affected him significantly.
The court found that the deterrent effect of imprisonment had already been felt, and that the prospects for rehabilitation were genuinely optimistic if the offender maintained abstinence from prohibited drugs and engaged with available support. The court noted that the offender's medical practitioner assessed the overall prognosis as basically optimistic, conditional on continued engagement with treatment and support networks.
Taking all these factors together, the court imposed a sentence but suspended it under s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW), attaching conditions including supervision by Community Corrections, with the offender required to comply with their directions. The court recorded its specified reasons for the suspension.
Orders Made
• Suspended sentence imposed
• Stay out of trouble
• Appear in court if notice given
• Notify court of current address: 3/24 Chelmsford Ave, Botany (brother David Gaul)
• Notify court of any change of address
• Comply with Community Corrections supervision
• Attend Community Corrections Service city office at Wentworth Avenue on or before 24 December 2014
However, the judgment records the following key outcomes:
- A suspended sentence imposed pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW)
- A 25% discount applied to the sentence reflecting the early guilty plea
- Two Form 1 offences (possessing housebreaking implements and goods in custody) taken into account
- The offender required to report to the Community Corrections city office at Wentworth Avenue on or before 24 December 2014
- Supervision by Community Corrections as a condition of the suspended sentence
Key Takeaways
- The District Court confirmed that an early guilty plea attracting a 25% discount, combined with genuine remorse, prior non-custodial history for similar offences, and substantiated rehabilitation prospects, can support a suspended sentence even for an offence as serious as aggravated break, enter and steal.
- Where an offender has served substantial pre-sentence custody, a court will take that time into account as a significant factor in determining the appropriate sentence.
- A diagnosed mental health condition and longstanding drug dependency do not excuse offending, but they are relevant to the court's assessment of the offender's circumstances and prospects for rehabilitation.
- Committing an offence while on conditional liberty, such as bail, is an aggravating feature a sentencing court must address directly.
- Under s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW), a suspended sentence requires the court to set out specified reasons; here, those reasons centred on the deterrent effect already achieved by custody, the genuine prospects for rehabilitation, and the offender's engagement with drug and alcohol support.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 112(2) (aggravated break, enter and steal), 114(1)(b) (possessing housebreaking implements), 527C(1)(a) (goods in custody)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12 (suspended sentences)
Cases cited: No cases were cited in the judgment as provided.