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District Court 16 December 2016

R v Dylan Peter Gray

[2016] NSWDC 368

Theft & propertyTraffic & driving
CRIMINAL LAW PROPERTY OFFENCES LARCENY UNLAWFULLY IN POSSESSION OF PROPERTY FURNISHING FALSE STATEMENT TO LICENSEE DRIVING OFFENCES

Citation: R v Dylan Peter Gray [2016] NSWDC 368
Court: District Court of New South Wales
Date: 16 December 2016
Judge: Hatzistergos DCJ

Background

The offender was committed to the District Court for sentence on a series of property and driving offences occurring over a two-week period in August 2015. The offending began when he sold jewellery he did not own to a precious metals exchange, falsely representing himself as the owner. Shortly after, he was observed by plain-clothes police acting suspiciously at a residential property in Carlingford, broke in through a rear window, but took nothing before fleeing in a vehicle. When police boxed in his car with marked lights and sirens, he reversed sharply and accelerated forward, narrowly avoiding officers, before escaping.

Three days later, the offender entered a commercial building in Haymarket, forced entry into two separate office suites using a tool resembling a flathead screwdriver, and stole electronic items valued at approximately $7,750 from one suite. He was arrested five days after that at a car park in Castle Hill, where police found clothing and screwdrivers matching those used in the earlier offences.

The offender pleaded guilty to three principal offences: break and enter a dwelling with intent to steal (Carlingford), break and enter a building with intent to steal (Haymarket), and break and enter a building and commit larceny (Haymarket). Two further offences relating to the jewellery sale were taken into account on a Form 1 (a procedure allowing related, lesser charges to be considered at sentence without separate conviction), and a charge of reckless driving was dealt with by way of a backup certificate.

  • What was the appropriate objective seriousness of each offence, individually and taken together?
  • Did any aggravating or mitigating factors under the Crimes (Sentencing Procedure) Act 1999 (NSW) apply?
  • What discount applied for the guilty pleas?
  • What was the appropriate structure and length of the aggregate sentence?
  • Whether the statutory requirement to impose imprisonment was met, and how the balance between general and specific deterrence should be weighed against rehabilitation prospects.

Decision

The court assessed the individual offences as falling in the lower range of objective seriousness. The underlying serious indictable offence in each case was larceny, which carries a maximum of five years imprisonment and sits at the lower end of offences contemplated by ss 112 and 113 of the Crimes Act 1900. While there was some planning (timing of entry when premises were unoccupied, use of a screwdriver), the court found no evidence of professional planning or organised criminal activity.

The dwelling break and enter at Carlingford carried an aggravating factor under s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 because it involved a home. However, the Crown did not establish that the premises were expected to be occupied, and the court declined to treat the two Haymarket suites as the "same premises" for the purposes of the additional aggravating factor relating to multiple offences at a single location, as they were different suites with different occupants. The multiplicity of offences committed over a short period was itself an aggravating factor under s 21A(2)(m). The offending was also committed while the offender was on conditional liberty, a further statutory aggravating factor.

A discount for the guilty pleas was applied, consistent with the principles in R v Thomson; R v Houlton (2000) and s 22 of the 1999 Act. The court considered a psychological report and noted the offender's history of drug dependence and background disadvantage as relevant subjective matters. Prospects of rehabilitation were characterised as guarded, and the court identified the need for general and specific deterrence as significant sentencing considerations.

An aggregate sentence was imposed under s 53A of the 1999 Act, incorporating all matters. The court was satisfied that no sentence other than full-time imprisonment was appropriate, and the aggregate term was structured with a non-parole period and an additional term.

Orders Made

  • Aggregate sentence of imprisonment imposed under s 53A of the Crimes (Sentencing Procedure) Act 1999
  • Non-parole period commencing and running to 15 September 2020
  • Additional term of one year and three months commencing 16 September 2020 and expiring 15 December 2021, at which date the offender becomes eligible for release to parole
  • Disqualification from driving for three years

Key Takeaways

  • The District Court confirmed that where the underlying "serious indictable offence" is larceny (maximum five years), this places the break and enter charges toward the lower end of objective seriousness, though it is not the only factor in that assessment.
  • Multiplicity of offences committed over a short period constitutes a distinct aggravating factor under s 21A(2)(m) of the Crimes (Sentencing Procedure) Act 1999, capable of elevating the overall seriousness even where individual offences might otherwise be assessed as less serious.
  • The aggravating factor under s 21A(2)(eb) (offence committed in a dwelling) applied to the residential break and enter notwithstanding that nothing was stolen, as the provision is not precluded by the elements of a break and enter with intent offence.
  • Two separate office suites in the same building, occupied by different tenants, were treated as distinct premises rather than a single location, which prevented an additional aggravating finding based on repeated offending at the same premises.
  • Guarded rehabilitation prospects, offending on conditional liberty, and the need for both general and specific deterrence supported a full-time custodial sentence, with the guilty plea discounts reflected in the aggregate term imposed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 4, 112(1)(a), 113(1), 117, 527C(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22, 47(1)(a), 53A
- Criminal Procedure Act 1986 (NSW), s 166(1)(b)
- Pawnbrokers and Second Hand Dealers Act 1996 (NSW), s 15(4)
- Road Transport Act 2013 (NSW), s 117(2)

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518
- Attorney General's Application (No 1) under s 26 of the Criminal Appeal Act; R v Ponfield (1999) 48 NSWLR 327; [1999] NSWCCA 435
- Callaghan v R [2006] NSWCCA 58
- Frigiani v R [2007] NSWCCA 81
- Palijan v R [2010] NSWCCA 142
- Pearce v R (1998) 194 CLR 610; [1998] HCA 57
- Porter v R [2008] NSWCCA 145
- R v Carter [2003] NSWCCA 243
- R v Huynh [2005] NSWCCA 220
- R v Lulham [2016] NSWCCA 287
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- R v Tuuta (2014) 239 A Crim R 399; [2014] NSWCCA 40
- Rich v R [2007] NSWCCA 193