Citation: R v Thoral (2) [2015] NSWDC 368
Court: District Court of New South Wales
Date: 13 November 2015
Judge: Berman SC DCJ
Background
The offender was found guilty after trial of break, enter and steal, having broken into a patisserie and taken food, drinks, and envelopes containing cash. Police discovered him and a co-offender in a vehicle containing the proceeds of the offence. The offender was also dealt with on a section 166 certificate (a procedural mechanism allowing a court to take related offences into account at sentencing without imposing additional punishment in certain circumstances) for possessing housebreaking implements and stealing three credit cards.
The offender had an extensive criminal history, including multiple prior convictions for break, enter and steal. He had been released on parole only three months before committing this offence, and his parole was subsequently revoked both for the offending and for breaching parole conditions by using drugs and failing to reside at his approved address.
His co-offender, who had pleaded guilty and had a very different criminal history, had previously been dealt with by a section 9 bond in the Local Court.
Legal Issues
- What was the appropriate sentence for the break, enter and steal offence, having regard to objective seriousness, criminal history, and the need for personal deterrence?
- Whether the offender's early commencement of drug use amounted to a mitigating circumstance in sentencing, applying the principles in R v Henry.
- How to address the disparity between the offender's sentence and that of his co-offender, given their different criminal histories and pleas.
- Whether the joint enterprise finding affected the sentencing approach, particularly regarding any aggravated "in company" element.
Decision
The District Court found that while the break, enter and steal was at the lower end of objective seriousness (retail premises, modest value taken, no gratuitous damage), the offender's extensive prior record meant a substantial custodial sentence remained necessary. Personal deterrence was identified as a particularly significant factor.
On the question of drug use as mitigation, Berman SC DCJ applied the principle from R v Henry that drug addiction can be a mitigating factor where commencing drug use was not truly a matter of personal choice. The court accepted that the offender, left unsupervised from around age 13 after being ejected from his father's home, had begun using drugs in circumstances that did not represent a mature, freely made decision. This was treated as a genuine mitigating circumstance.
On co-offender disparity, the court acknowledged the need to avoid a justifiable sense of grievance when comparing sentences across co-offenders. However, the substantial differences in criminal history and the co-offender's guilty plea justified the significant difference in outcome. The court was careful to note that, although the guilty verdict rested on joint criminal enterprise, the offender was not charged with an aggravated "in company" offence. Sentencing therefore proceeded on the basis that both men were not physically present together inside the premises.
The court found special circumstances favouring a longer-than-usual parole period, based on a psychological report identifying the offender's need for structured support, employment assistance, and drug treatment upon release.
Orders Made
- Larceny (section 166 certificate): fixed term of 1 month imprisonment, commencing 13 May 2015
- Possessing housebreaking implements (section 166 certificate): fixed term of 2 months imprisonment, commencing 13 June 2015
- Break, enter and steal: non-parole period of 2 years with a head sentence of 4 years, commencing 13 June 2015; eligible for parole from 12 June 2017
- Referral to the compulsory drug treatment centre at Parklea gaol
Key Takeaways
- A break, enter and steal conviction does not automatically attract the most severe sentence within the statutory range; objective features such as the nature of premises, value of property taken, and degree of damage remain relevant to calibrating seriousness.
- Under the principles in R v Henry, drug addiction may operate as a mitigating factor at sentencing where the circumstances of first use demonstrate that the decision was not truly a free or mature one, particularly where the offender was very young and subject to inadequate parental oversight.
- Where a verdict rests on joint criminal enterprise, the sentencing court must still confine itself to the facts actually established. Here, because the offender was not charged with an aggravated "in company" form of the offence, sentence was not elevated on that basis.
- Disparity between co-offender sentences does not automatically produce appealable error; the District Court recognised that substantially different criminal histories and a guilty plea by the co-offender provided sufficient justification for markedly different outcomes.
- A finding of special circumstances at sentencing can support a longer parole period beyond the standard statutory ratio where the offender's rehabilitative needs, including drug treatment, are demonstrated by expert evidence.
Legislation and Cases Referenced
Cases:
- R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R 149 (Court of Criminal Appeal guideline judgment on armed robbery and drug addiction as mitigation)
Legislation:
- Section 166 of the (then) Crimes Act 1900 (NSW), governing the taking of additional offences into account on a certificate at sentencing
- Section 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW), under which the co-offender received a bond without conviction in the Local Court