Citation: R v Williams [2016] NSWDC 179
Court: District Court of New South Wales
Date: 24 March 2016
Judge: Berman SC DCJ
Background
The offender pleaded guilty to one count of break, enter and steal arising from a daytime burglary at a residential property in Killara. The offender used an implement to jemmy open a window, entered the home while the occupants were absent, and removed jewellery, a camcorder, a camera, and a wallet containing a credit card, with a total value of $5,150. He was detected after leaving a blood stain at the scene, and was arrested several months later.
This was the offender's tenth conviction for break, enter and steal. His broader criminal history included three convictions for armed robbery and four convictions for firearms offences. He had spent a significant portion of his life in custody.
The offender was 50 years of age at the time of sentencing. He had a difficult upbringing marked by exposure to violence, parental criminality, and drug use from an early age. His drug problems began in early adolescence and continued throughout his adult life.
Legal Issues
- What was the appropriate sentence, having regard to the objective gravity of the offence assessed against the factors identified in the guideline judgment of R v Ponfield?
- Whether a finding of special circumstances was warranted, given the offender's history of breaching parole and his prospects for rehabilitation?
- What weight should be given to the offender's early guilty plea, personal circumstances, and lengthy criminal history when determining the head sentence and non-parole period?
Decision
Berman SC DCJ assessed the objective seriousness of the offence as moderate. Applying the Ponfield guideline, the judge noted there was some planning involved, though nothing beyond what is ordinary for offences of this type. No one was home, there was no gratuitous vandalism, and no evidence of unexpected trauma to the residents. While the monetary value of the stolen property was relatively modest, the judge emphasised that sentimental value cannot be disregarded, particularly for jewellery.
A 25 percent discount was applied to the sentence in recognition of the offender's early guilty plea. The judge acknowledged the offender's difficult background, including a father who modelled violence and criminality, and noted the continued support of his mother, who was present in court. These subjective matters were weighed against a substantial criminal record that demonstrated a persistent disregard for the law, requiring a sentence with a significant personal deterrence component.
On the question of special circumstances, the Crown opposed the finding on the basis that the offender had previously offended whilst on parole and could not claim any entitlement to a reduced non-parole period. The judge accepted that submission had force, but found special circumstances nonetheless. The reasoning centred on the broader purposes of sentencing, particularly community protection, and the view that an extended period of supervised parole would assist the offender, now aged 50 and at real risk of institutionalisation, to reintegrate into the community.
The judge also referred the offender to the Drug Court, reflecting the longstanding connection between the offender's drug use and his offending.
Orders Made
- Non-parole period of two and a half years, commencing 21 July 2015 and expiring 20 January 2018
- Head sentence of four years
- Offender referred to the Drug Court
Key Takeaways
- The District Court confirmed that the commonplace nature of break, enter and steal offences does not diminish their seriousness, and that the monetary value of stolen property is not the dominant measure of objective gravity, particularly where items of likely sentimental value are involved.
- Applying R v Ponfield (1999) 48 NSWLR 327, the court assessed objective gravity by reference to factors including the level of planning, whether occupants were present, the presence or absence of vandalism, and the impact on residents.
- A finding of special circumstances can be made even where an offender has a history of breaching parole, provided the broader purposes of sentencing, particularly community protection and supervised reintegration, support such a finding.
- Personal deterrence carries significant weight where an offender has accumulated an extensive record of the same type of offending over many years.
- An early guilty plea attracted the standard 25 percent discount, and difficult personal circumstances, including childhood exposure to violence and criminality, were acknowledged in mitigation without displacing the need for a substantial custodial term.
Legislation and Cases Referenced
Cases:
- R v Ponfield (1999) 48 NSWLR 327 (guideline judgment on objective factors for break, enter and steal offences)
No specific legislation was cited in the judgment text.