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District Court 1 October 2015

R v Orcher

[2015] NSWDC 347

Theft & property
CRIMINAL LAW SENTENCE PARTICULAR OFFENCE BREAK IN AT SERVICE STATION RELEVANT FACTORS GRAVITY OF OFFENCE

Citation: R v Orcher [2015] NSWDC 347
Court: District Court of New South Wales
Date: 1 October 2015
Judge: Cogswell SC DCJ

Background

The offender, a 20-year-old Aboriginal man, was sentenced for aggravated break and enter with intent to steal, contrary to s 113(2) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 14 years imprisonment. The offending occurred in the early hours of 3 November 2014 at a Coles Express Shell Service Station in South Tamworth. The offender threw a large rock through the glass door, narrowly missing the sole console operator on duty, and then attempted to enlarge the opening by kicking and pulling at the remaining glass. A panel of glass fell on his leg, causing a serious injury that forced him to abandon the attempt. He was arrested at hospital.

The service station offence was the culmination of a night of related offending. Earlier that evening, the offender had twice stolen rum from a hotel bottle shop and, with a companion, had attempted to break into a Liquorland store by throwing bitumen at the glass doors, causing damage requiring replacement of the doors. Three offences arising from those incidents (two counts of larceny and one count of property damage) were taken into account on a Form 1 under s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

The offender pleaded guilty at the earliest available opportunity. He had a prior criminal record, including aggravated break and enter in company, assault occasioning actual bodily harm, car theft, and shoplifting. At the time of this offending he was subject to a good behaviour bond for malicious damage to property.

  • How serious was this particular instance of aggravated break and enter with intent to steal within the range of the offence?
  • What weight should be given to the statutory aggravating factors, including offending in company and the vulnerability of the victim?
  • How should the Fernando principles apply to the sentencing of an Aboriginal offender with a severely deprived background?
  • Whether special circumstances existed to justify adjusting the ratio between the head sentence and the non-parole period.
  • What discount applied for the plea of guilty at the earliest opportunity?

Decision

His Honour assessed the offence as sitting at the lower end of the range of objective seriousness for this type of crime. The impulsive nature of the offending and the limited planning involved were mitigating features. However, the court found that the sole console operator was a vulnerable person within the meaning of s 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999, which specifically identifies service station attendants as a category of vulnerable victim. That vulnerability aggravated the offending. The offender's commission of the offence in company was a further statutory aggravating factor.

The court applied the principles from R v Fernando (1992) 76 A Crim R 58, which address the sentencing of Aboriginal offenders whose offending is connected to severe social disadvantage and deprivation. The offender's background was described in the pre-sentence report as deeply troubled: his mother had been murdered, he had been raised by a foster grandmother, he was expelled from school in Year 8, and he had developed a serious dependency on ice (methamphetamine), cannabis, and alcohol from a young age. His stated purpose in committing the offences was to obtain money for drugs. His ADHD had been medicated in childhood but was not being treated in adulthood. The pre-sentence report assessed his risk of reoffending as medium to high, and his rehabilitation prospects were described realistically as uncertain, though not without possibility given his age.

The court recognised the offender's prior criminal record as a factor that eliminated any leniency for a clean record, while also acknowledging the 25% discount for his early plea of guilty. Special circumstances were found to exist, justifying a longer-than-standard non-parole period relative to the head sentence, primarily because of the offender's youth, deprived background, and the need for adequate supervision on parole to address his drug dependency. The court backdated the sentence to take into account 189 days spent in pre-sentence custody and structured the sentence to run partly concurrently with a sentence already being served following Local Court proceedings.

Orders Made

  • The offender was convicted of aggravated break and enter with intent to steal contrary to s 113(2) of the Crimes Act 1900 (NSW).
  • Three offences (two counts of larceny and one count of property damage) were taken into account on a Form 1 under s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • A total sentence of 3 years imprisonment was imposed, backdated to 1 July 2015.
  • Non-parole period set to expire on 30 April 2017, with release to parole on that date.
  • The sentence ran partly concurrently with the existing Local Court sentence.
  • Standard parole conditions imposed, including reporting address changes, attending court when required, and supervision by Community Corrections.
  • Additional parole condition requiring engagement with Community Corrections, including referral to alcohol and other drug relapse prevention programs, residential rehabilitation, and vocational and educational programs.
  • Recommendation made to the Commissioner for Corrective Services that the offender be considered for referral to the Custodial Intensive Drug and Alcohol Treatment program and/or the Ngara Nura Program.

Key Takeaways

  • The District Court confirmed that service station attendants working alone on night shifts fall squarely within the category of vulnerable victims under s 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999, and that targeting such a person constitutes a statutory aggravating factor even where the offending is otherwise at the lower end of objective seriousness.
  • Applying the Fernando principles, a sentencing court must give genuine weight to an Aboriginal offender's severely deprived background and its connection to offending, even where rehabilitation prospects are uncertain and the criminal record is substantial.
  • A plea of guilty at the earliest available opportunity attracted a 25% discount from the head sentence, consistent with established practice.
  • Special circumstances justifying an adjusted ratio between head sentence and non-parole period were established by the combination of the offender's youth, deprived background, and need for structured community supervision to address entrenched drug dependency.
  • An existing prior criminal record, even in a young offender, removes the sentencing benefit that would otherwise attach to a clean history, though it does not extinguish other mitigating considerations such as age and background.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 113(2) (aggravated break and enter with intent to steal)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A (aggravating and mitigating factors), s 32 (Form 1 procedure)

Cases:
- R v Fernando (1992) 76 A Crim R 58