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District Court 4 March 2016

R v Jordan

[2016] NSWDC 164

Theft & property
CRIMINAL LAW SENTENCE FORM 1 INAPPROPRIATE CHARGE BARGAINING BY DPP BEHAVIORAL PROBLEMS AS A CHILD POOR ROLE MODELS

Citation: R v Jordan [2016] NSWDC 164
Court: District Court of New South Wales
Date: 4 March 2016
Judge: Berman SC DCJ

Background

The offender was a young man sentenced for residential break-and-enter offences committed on 27 June 2015. He broke into an occupied dwelling mid-morning, stole a handbag containing a mobile phone and bank cards, and was later observed rummaging through the bag in a neighbouring property's backyard. Police also caught him in the act of breaking into a second property in Glebe.

The offender had an exceptionally difficult upbringing. Both parents were drug addicts with extensive criminal histories, and he was raised by whichever parent happened to be out of custody at any given time. After a period in foster care, he returned to live with his father at around age 14, left formal schooling, and was eventually left to survive on the streets when his father was again imprisoned. He had a history of drug use and a prior criminal record, though this was to be the first significant period of custody he would serve.

The charges presented by the prosecution attracted judicial criticism. Rather than charging the offender with aggravated break, enter and commit a serious indictable offence (which carries a standard non-parole period), the DPP charged aggravated entry with intent to steal as the principal offence and listed the actual theft on a Form 1 (a mechanism by which additional offences are taken into account at sentencing without being separately prosecuted). His Honour found this structure appeared designed to avoid the standard non-parole period.

  • What is the appropriate sentence for the principal offence of aggravated enter dwelling house with intent to steal, with the theft and entering enclosed lands on a Form 1, and a second break-and-enter offence?
  • What weight should be given to the offender's disadvantaged background and reduced moral culpability in sentencing?
  • Whether special circumstances existed justifying a departure from the standard ratio between non-parole period and head sentence (to allow for an extended parole period focused on drug rehabilitation).
  • Whether the prosecution's charge structure constituted inappropriate charge bargaining.

Decision

Berman SC DCJ opened by addressing the relationship between the offender's upbringing and his offending, finding that a childhood marked by parental drug use, repeated parental imprisonment, and an absence of behavioural boundaries reduced his moral culpability. The court noted that personal choice, often central to assessments of culpability, must be understood in the context of a person's formative environment.

His Honour rejected the defence submission that the offences fell at the low end of the range. He characterised them as standard, middle-of-the-range break-and-enter offending, emphasising the real and well-documented harm suffered by victims of residential burglary, including lasting fear, reduced confidence, and broader community costs such as higher insurance premiums.

The court was highly critical of the DPP's charge bargaining. By splitting the offending into an "enter with intent" charge and placing the completed theft on a Form 1, the prosecution had avoided the standard non-parole period that would otherwise have applied to a charge of aggravated break, enter and commit a serious indictable offence. Berman SC DCJ stated plainly that such conduct brought discredit on the criminal justice system.

The court found special circumstances based on the offender's need for structured support to address drug dependency upon release. His drug use was directly linked to the offending, and his rehabilitation prospects were considered closely tied to his capacity to remain drug-free. The court also noted his remorse, his clean custodial record, and his father's eventual rehabilitation as a positive indicator of what was possible.

Orders Made

  • Aggregate sentence of imprisonment imposed.
  • Non-parole period of two years, dated from 27 July 2015, expiring 26 July 2017.
  • Head sentence of three and a half years.
  • Special circumstances found, resulting in an extended parole period beyond the standard ratio.
  • A 25% discount applied to the sentence for the early guilty plea.

Key Takeaways

  • The District Court firmly rejected the characterisation of standard residential break-and-enter offences as "low end," reaffirming that such offending causes serious and lasting harm to victims and the broader community.
  • Berman SC DCJ found that structuring charges to avoid a standard non-parole period constitutes inappropriate charge bargaining that discredits the criminal justice system, and he directed that criticism squarely at prosecutors and DPP solicitors involved.
  • A deprived upbringing marked by parental offending, drug use, and absence of boundaries was treated as a significant mitigating factor going to the offender's reduced moral culpability, though it did not displace the need for general deterrence.
  • Special circumstances were established where an offender's drug dependency was directly linked to his offending and where an extended parole period was considered necessary to support rehabilitation, benefiting both the individual and the community.
  • The court reduced the sentence by 25% in recognition of the early guilty plea, and dated the sentence from the later of two possible commencement dates to exclude a period of pre-sentence custody referable to an unrelated matter.

Legislation and Cases Referenced

No specific legislation or cases were cited in the judgment text or metadata. The following offences and sentencing concepts were referenced by name:

  • Aggravated enter dwelling house with intent to steal (circumstance of aggravation: premises known or deemed known to be occupied)
  • Aggravated break, enter and commit a serious indictable offence (referenced by comparison)
  • Steal from a dwelling house (Form 1)
  • Enter enclosed lands without lawful excuse (Form 1)
  • Standard non-parole period (applicable to aggravated break, enter and commit a serious indictable offence)
  • Form 1 procedure (taking additional offences into account at sentencing)
  • Special circumstances (permitting departure from the standard non-parole period ratio)