Citation: Mirzaiyun v R [2015] NSWDC 124
Court: District Court of New South Wales
Date: 10 March 2015
Judge: Neilson DCJ
Background
The appellant was convicted in the Local Court at Waverley on 21 January 2015 of four offences of larceny arising from a single incident at the Westfield Bondi Junction shopping centre. The stolen goods included food items from Woolworths, clothing and footwear from Pavement and Kathmandu stores, and a wetsuit from David Jones. All items were recovered and returned to their owners. The total value of the goods was $365.83.
Magistrate Farnan sentenced the appellant to one month's imprisonment for each offence, with the sentences running concurrently and suspended under section 12 of the Crimes (Sentencing Procedure) Act 1999. The appellant had a prior record of similar offending, though his most recent offences dated from 2011 and 2009.
The appellant appealed to the District Court on the ground that the sentences were excessive in severity.
Legal Issues
- Whether a custodial sentence (even a suspended one) was warranted for four counts of larceny totalling $365.83 in value, given the appellant's personal circumstances and prior record
- Whether the Local Court properly applied section 5(1) of the Crimes (Sentencing Procedure) Act 1999, which requires a court to be satisfied that no penalty other than imprisonment is appropriate before imposing a custodial sentence
Decision
Neilson DCJ acknowledged that the Local Court's imposition of a custodial sentence was understandable. The appellant had a history of shoplifting offences dating back to 1991, and successive bonds and recognisances had not deterred him from reoffending.
However, the District Court found that the appellant's circumstances provided meaningful context for the offending. He is the full-time carer for his wife, who receives an invalid pension. The family's combined income of approximately $1,000 per week was substantially consumed by weekly rent of $585, leaving limited funds for food and clothing for themselves and their 12-year-old daughter.
The District Court emphasised that section 5(1) of the Crimes (Sentencing Procedure) Act 1999 applies even where imprisonment is to be suspended: a court must first be satisfied that no other penalty is appropriate. His Honour noted that all stolen goods had been returned, that the value involved was modest, and that a community service order and Community Corrections intervention were both unsuitable given the appellant's full-time carer responsibilities. Although the appellant had breached a recognisance in 1992, he had complied with all subsequent bonds and recognisances over more than two decades.
On that basis, the District Court concluded that a custodial sentence was not warranted and that a two-year good behaviour bond under section 9 of the Crimes (Sentencing Procedure) Act 1999 was the appropriate disposition.
Orders Made
The sentences imposed by Magistrate Farnan on 21 January 2015 were set aside. In respect of each offence, the appellant was ordered to enter into a good behaviour bond for a period of two years from 10 March 2015, on the following conditions:
- Appear before the Court if called upon to do so at any time
- Be of good behaviour
- Reside at the specified address in Vaucluse, NSW 2030
- Advise the Registrar of the Court by pre-paid registered post of any change of residential address during the term of the bond
Key Takeaways
- Under section 5(1) of the Crimes (Sentencing Procedure) Act 1999, the obligation to consider all alternatives before imposing imprisonment applies equally where the custodial sentence is to be suspended, not only where immediate custody is in prospect.
- The District Court held that the complete recovery and return of stolen goods, the modest total value involved, and the absence of any suitable non-custodial correctional program do not automatically make imprisonment the only option; a good behaviour bond may remain available.
- A lengthy gap in serious offending (here, no offending between 1995 and 2009) and a history of compliance with subsequent court orders can weigh against a custodial sentence even where an offender has a relevant prior record.
- Significant financial hardship arising from caring responsibilities and high housing costs was treated as contextual mitigation going to the circumstances of the offending, though the court did not suggest such hardship provides a justification for theft.
- In substituting the bond for the suspended terms, the District Court illustrated that sentencing courts retain an obligation to work through available alternatives methodically before reaching a custodial outcome, however modest the period of imprisonment in question.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), including section 558 (recognisance)
- Crimes (Sentencing Procedure) Act 1999 (NSW), sections 5(1), 9, and 12
Cases cited: No cases were cited in the judgment.