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District Court 3 December 2015

R v Borg

[2015] NSWDC 393

Theft & property
CRIMINAL LAW SENTENCE NO PERSONS PRESENT ACCUSED DISCHARGED AT COMMITTAL COMMITTED IN COMPANY FREE FOR EIGHT MONTHS

Citation: R v Borg [2015] NSWDC 393
Court: District Court of New South Wales
Date: 3 December 2015
Judge(s): Neilson DCJ

Background

The offender, a 45-year-old man with a lengthy criminal history driven by longstanding illicit drug addiction, appeared for sentencing on two charges. The first was aggravated break, enter and steal in company, committed at a bakery in Arncliffe in the early hours of 11 February 2014. The offender and an accomplice forced entry, causing approximately $500 in door damage, and stole four charity tins from the counter.

The second charge was larceny committed ten days later, on 21 February 2014, at a Woolworths supermarket in Kingsgrove. The offender and the same accomplice loaded a shopping trolley with $982.34 worth of groceries and left without paying. The co-offender was discharged at committal on the break-and-enter charge and was subsequently placed on an 18-month good behaviour bond for the larceny.

The offender was arrested on 24 February 2014 and remained in custody for one year, five weeks and two days before being granted bail. He entered guilty pleas at the earliest possible opportunity to both charges, entitling him to a 25% sentence discount for the utilitarian value of those pleas.

  • What is the appropriate head sentence and non-parole period for aggravated break, enter and steal in company, given the circumstances of the offence and the offender?
  • How should the lengthy pre-sentence custody period be accounted for in the sentence?
  • Does the offender's progress in addressing his drug addiction, combined with his criminal history, justify a finding of special circumstances to vary the statutory non-parole period?
  • What is the appropriate penalty for the concurrent larceny charge?

Decision

Neilson DCJ placed the break-and-enter offence at the very bottom of the range for this category of offending. The premises were unoccupied commercial premises, damage was modest, the amount stolen was small, and no person was present who might have been alarmed. Although the maximum penalty is 20 years' imprisonment and the standard non-parole period is five years, those benchmarks did not translate to a heavy sentence on the facts here.

After applying the 25% discount for the early guilty pleas, the court set a head sentence of two years' imprisonment for the aggravated break, enter and steal. The non-parole period was set at one year, five weeks and two days, which precisely matched the time the offender had already spent in pre-sentence custody. This meant he had already served the non-parole period in full by the time of sentencing and was entitled to be released on parole immediately.

The court found special circumstances justifying a departure from the statutory ratio between the head sentence and the non-parole period. The extended balance of sentence on parole was considered appropriate given the offender's demonstrated progress in addressing his drug addiction, his eight months of being drug-free, his stable employment, and Community Corrections' view that ongoing supervision would support his rehabilitation. His criminal history, which spanned nearly three decades and was closely tied to drug dependency, did not permit leniency in its own right, but his current trajectory was treated as a meaningful indicator of reduced reoffending risk.

For the larceny charge, the court imposed a fixed term of six months' imprisonment, wholly concurrent with the principal sentence.

Orders Made

  • Aggravated break, enter and steal in company (11 February 2014, Arncliffe): convicted and sentenced to two years' imprisonment, comprising a non-parole period of one year, five weeks and two days (24 February 2014 to 1 April 2015), with a balance of sentence of 46 weeks and five days expiring 23 February 2016.
  • Special circumstances found; the offender released to parole at the expiration of the non-parole period.
  • Offender directed to report to the City Community Corrections Office within seven days.
  • Larceny (21 February 2014, Kingsgrove): convicted and sentenced to six months' imprisonment (24 February 2014 to 23 August 2014), wholly concurrent with the principal sentence.

Key Takeaways

  • The District Court placed aggravated break, enter and steal at the very bottom of its sentencing range where the premises were unoccupied commercial premises, damage and theft were minimal, and no person was present to be alarmed.
  • A 25% sentencing discount applies where an offender pleads guilty at the earliest possible opportunity, reflecting the full utilitarian value of the plea.
  • Special circumstances can justify extending the balance of sentence beyond the statutory ratio where an offender demonstrates genuine, evidenced rehabilitation progress, including participation in drug treatment programmes, consistent employment, and sustained drug-free periods.
  • Pre-sentence custody is taken into account in fixing the non-parole period; here, the time already served was treated as an adequate non-parole period on the facts.
  • A lengthy criminal history linked to chronic drug addiction does not automatically preclude a finding of special circumstances, but it does foreclose leniency on the basis of criminal history alone.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 10 (and former equivalent s 556A), s 9 bond provisions

Cases:
No cases were cited in the judgment text or metadata.