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District Court 4 November 2016

R v Vassallo

[2016] NSWDC 381

Theft & propertyDomestic & family violencePublic order & justice offences
CRIME SENTENCE CRIMES ACT 1900 S133(2) OFFENDER AND HIS PARTNER ARGUING UNUSUAL CRIME VERY LOW LIKELIHOOD OF REOCCURRENCE

Citation: [2016] NSWDC 381
Court: District Court of New South Wales
Date: 4 November 2016
Judge: Neilson DCJ

Background

The offender, a 33-year-old man, pleaded guilty to breaking and entering a dwelling house with intent to commit a serious indictable offence, namely intimidation, in circumstances of aggravation under s 133(2) of the Crimes Act 1900. The charge arose from events on 14 March 2016 at Campsie, New South Wales. At the time, the offender and his pregnant partner had been arguing about their living arrangements.

After his partner left their home to stay with a friend, the offender drove to that friend's house. When denied entry, he kicked down the front door despite the occupant having deadbolted it and called police. The offender entered the house, asked his partner to come outside and talk, took her handbag, and the two left together in his vehicle.

The offender was arrested later that same evening, refused bail, and remained in custody for six months and one day before the Supreme Court granted bail. By the time of sentencing, the offender and his partner were living together at Richmond, and their son had been born three days earlier.

  • What was the appropriate head sentence for the offence of aggravated break and enter under s 133(2) of the Crimes Act 1900, which carries a maximum penalty of 14 years imprisonment?
  • What discount applied for the offender's early guilty plea?
  • Whether special circumstances existed to justify a longer than usual parole period relative to the non-parole period.
  • How the time already served in pre-sentence custody should be treated in structuring the sentence.

Decision

Neilson DCJ identified the conduct as a drug-fuelled overreaction to a domestic dispute rather than a premeditated criminal enterprise. His Honour accepted that the offender's intention in entering the house was to speak with his partner, though the intimidation of the occupant, Ms Watson, was an admitted consequence. The court acknowledged the seriousness of the offence by reference to the maximum penalty, while also noting the highly unusual circumstances and the very low likelihood of reoffending.

His Honour determined a starting point of 16 months imprisonment, discounted by 25 percent for the early guilty plea, arriving at a head sentence of 12 months. The Crown accepted the plea was entered at the earliest available opportunity and that it demonstrated both utilitarian value and genuine contrition.

The court found special circumstances, principally because the offender had a partner and a newborn child to support and was engaged in counselling. This justified a non-parole period shorter than the statutory default ratio. His Honour structured the sentence so that the six months and one day already served in custody constituted the entire non-parole period, with the offender to serve the balance on parole.

Orders Made

  • The offender was convicted of aggravated break and enter with intent to intimidate, contrary to s 133(2) of the Crimes Act 1900.
  • Sentenced to a total term of one year's imprisonment.
  • Non-parole period of six months and one day, commencing 14 March 2016 and expiring 14 September 2016 (already served).
  • Balance of sentence (six months less one day) to be served on parole, expiring 13 March 2017.
  • Special circumstances found.
  • The offender was released to parole upon expiry of the non-parole period, subject to compliance with all reasonable directions of Community Corrections.
  • Required to report to the Community Corrections office at Windsor within seven days.

Key Takeaways

  • The District Court treated the absence of a standard non-parole period for s 133(2) as a relevant sentencing consideration, giving the court greater flexibility in structuring the sentence around the specific facts.
  • A 25 percent discount for an early guilty plea was applied where the Crown accepted the plea was entered at the first available opportunity, reflecting both utilitarian value and demonstrated contrition.
  • Where an offender's purpose in breaking and entering was to speak with a partner rather than to commit a conventionally criminal act, the court nonetheless emphasised the gravity of the offence by reference to Parliament's prescribed maximum of 14 years.
  • Special circumstances were established on the basis of the offender's family responsibilities and engagement with rehabilitation, supporting a parole period significantly longer than the non-parole period.
  • Time served in pre-sentence custody, including a period spent in police cells during which the offender was assaulted, was treated as sufficient to satisfy the non-parole period, enabling immediate release to parole at sentencing.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 133(2) (break and enter a dwelling house with intent to commit a serious indictable offence in circumstances of aggravation)

Cases: No cases were cited in the judgment.