Citation: R v Brandon; R v Flaus [2014] NSWDC 337
Court: District Court of New South Wales
Date: 5 November 2014
Judge: Cogswell SC DCJ
Background
Two young men were arrested in Raymond Terrace in the early hours of 25 February 2014, pushing a shopping trolley filled with stolen goods. Police investigation revealed they had broken into a local Woolworths supermarket that same morning, and again on a separate occasion a few days earlier. Both offences were committed in company with juvenile co-offenders.
Each man was charged with two counts of aggravated break, enter and steal in company under s 112(2) of the Crimes Act 1900 (NSW), an offence carrying a maximum penalty of 20 years imprisonment and a standard non-parole period of five years. Both pleaded guilty at the earliest available opportunity.
The first offender was 18 at the time of the offences and had no prior criminal record. The second was 24 and had a limited record involving assault, contravention of an apprehended violence order, and traffic offences. Neither was in employment, and the second was in unstable temporary accommodation.
Legal Issues
- Whether the objective seriousness of the offences warranted a sentence of imprisonment
- Whether a non-custodial sentence, specifically a good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW), was appropriate in the circumstances
- Whether the second offender was entitled to a sentencing discount under the R v Ellis principle (for disclosures to police that assist the prosecution)
- Whether the sentences imposed on juvenile co-offenders were relevant to the sentences imposed on these two adult offenders, given that the parity principle does not strictly apply across the juvenile and adult jurisdictions
Decision
His Honour accepted that the offences sat at the lower end of the range of objective seriousness. The offenders were not professional criminals; the conduct was described by defence counsel, and accepted by the court, as "immature and childish". No aggravating factors under s 21A of the Crimes (Sentencing Procedure) Act were present, and several mitigating factors applied, including the early guilty pleas, the youth of both offenders, and the absence of any record for the first offender.
The court declined to apply the R v Ellis discount to the second offender. That principle allows credit for a plea of guilty accompanied by a disclosure that materially assists the prosecution. However, it emerged during the hearing that the second offender had been made aware of the earlier break-in by police, rather than having volunteered the information independently. The first offender did receive credit, as he had proactively disclosed the earlier offence during his police interview.
On the question of co-offender parity, the court noted that although the strict parity principle does not apply between juvenile and adult offenders, the sentences received by the juvenile co-offenders were not entirely irrelevant. Two of the three juvenile co-offenders received non-custodial sentences; the third received a control order, but had an extensive criminal history.
Applying s 5 of the Crimes (Sentencing Procedure) Act, which prohibits a court from imposing imprisonment unless satisfied that no other penalty is appropriate after considering all alternatives, the court determined that good behaviour bonds were within the available sentencing range. The youth of both offenders, particularly the first, weighed heavily in this conclusion. The prosecutor also acknowledged that a good behaviour bond was an available option on the facts.
Orders Made
- Both offenders directed to enter into a two-year good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW)
- Bond conditions included: good behaviour; notification of any change of address to the court registry; attendance at court if required
- Both offenders required to accept supervision by Community Corrections and comply with all reasonable recommendations and directions
- First offender directed to report to Community Corrections in Muswellbrook, and second offender to report to Community Corrections in Maitland, by the following Thursday
- For the second offender, supervision to focus on alcohol and other drug intervention, mental health support, and employment assistance
Key Takeaways
- Under s 5 of the Crimes (Sentencing Procedure) Act 1999, a sentencing court must consider all alternatives before imposing imprisonment; even for a serious offence carrying a 20-year maximum, a non-custodial sentence remains available where the objective seriousness is low and the offenders are young.
- The R v Ellis discount for a guilty plea accompanied by a disclosure to authorities does not apply where the offender was first alerted to the relevant conduct by police, rather than volunteering the information independently.
- While the parity principle does not strictly govern sentencing as between juvenile and adult co-offenders, the District Court confirmed that the sentences received by juvenile participants are not entirely irrelevant to the sentencing exercise for adult co-offenders.
- Youthfulness at the time of offending remains a significant mitigating factor, and the court expressed a clear reluctance to commit first-time or near first-time young adult offenders to adult custody.
- An early guilty plea carries double weight in appropriate cases: it benefits the criminal justice system and also serves as evidence of genuine contrition by the offender.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 112(2) (aggravated break, enter and steal in company)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5 (imprisonment as last resort), 9 (good behaviour bonds), 21A (aggravating and mitigating factors)
Cases
- R v Ellis (1986) 6 NSWLR 603 (discount for pleas accompanied by disclosures to police)
- R v Ponfield (1999) 48 NSWLR 327 (Court of Criminal Appeal guideline judgment for break and enter offences)