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District Court 14 December 2016

R v Gardiner

[2016] NSWDC 402

Theft & property
CRIMINAL LAW SENTENCE FORM 1 PERSON IN HOUSE AT TIME OF OFFENDING ON S9 BOND AT TIME OF OFFENDING

Citation: R v Gardiner [2016] NSWDC 402
Court: District Court of New South Wales
Date: 14 December 2016
Judge(s): Berman SC DCJ

Background

The offender, a 20-year-old man with a history of drug use beginning at age 12, appeared for sentencing on a charge of entering a dwelling house with intent to commit larceny in circumstances of aggravation. The aggravating circumstance was that a person was present in the home at the time of the offence. The offending occurred on 12 December 2015 at a residential property in Cronulla.

While the householder was upstairs watching television, the offender entered through the back door and searched through several rooms. He stole a Samsung tablet. The occupant heard sounds but believed it was a family member. The offender's fingerprints were later matched at the scene, and the tablet was recovered from a vehicle in which he was travelling on the day of his arrest.

The offender pleaded guilty at the earliest opportunity. He also asked the court to take into account four additional matters on a Form 1: one count of larceny relating to the stolen tablet, and three counts involving the unauthorised use of another person's credit card for relatively small amounts.

  • What is the appropriate sentence for an offence of entering a dwelling house with intent to commit larceny in circumstances of aggravation, where a person was present on the premises?
  • How should the offender's drug background, early guilty plea, youth, and remorse bear on the sentence?
  • What weight should be given to the fact that the offender was subject to a section 9 bond at the time of the offending?
  • Whether the offender is suitable to serve any sentence of two years or less by way of an Intensive Corrections Order (ICO), requiring an assessment before final sentence is imposed.

Decision

Berman SC DCJ noted that the maximum penalty for the offence is 14 years imprisonment, which Parliament has set to reflect the seriousness of home invasions. The presence of a person in the premises at the time was identified as one of the most serious forms of aggravation available under the offence. The court observed that the offender likely knew someone was home, given the audible television, and proceeded regardless.

The court viewed the offender's breach of a section 9 bond, imposed only about two months before the offence, as a further aggravating factor. Against these matters, the court weighed the offender's early guilty plea, which attracted a 25 per cent sentencing discount, his youth, his expressed remorse, and evidence given by both the offender and his mother about the changes that had occurred since his arrest.

His Honour also commented on the Form 1 matters, noting that the inclusion of the larceny charge, which was the completed act underlying the principal offence (which required only an intent to steal), was an unusual product of plea bargaining that should not be encouraged.

The court was satisfied that the total sentence would be two years or less and that an assessment for an Intensive Corrections Order was appropriate. Final sentence was adjourned to 3 March 2017 pending that assessment.

Orders Made

  • Sentencing adjourned to 3 March 2017 pending an Intensive Corrections Order suitability assessment.
  • Bail granted to the offender on the following conditions:
  • No use of illegal drugs.
  • Reside with his mother and stepfather at a specified Allawah address.
  • Report to Hurstville Police Station every Monday and Thursday.

Key Takeaways

  • The presence of a person in the premises at the time of a break-and-enter offence is treated as one of the most serious forms of aggravation, reflecting the significant potential for harm even where no physical confrontation occurs.
  • Offending while subject to a section 9 bond is an aggravating circumstance in sentencing, and the proximity of the bond to the offending added weight against the offender.
  • An early guilty plea attracted a 25 per cent discount, consistent with the court's recognition of utilitarian value even in cases with strong prosecution evidence.
  • The District Court flagged that plea arrangements resulting in a completed act (the larceny) appearing on a Form 1 while only the intent to commit that same act forms part of the principal charge create an anomaly, and described such creative plea bargaining as something not to be encouraged.
  • Where a sentence of two years or less is in contemplation, the court may adjourn proceedings to allow an assessment of suitability for an Intensive Corrections Order before imposing final sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW): offence of entering a dwelling house with intent to commit larceny in circumstances of aggravation (maximum penalty: 14 years imprisonment)
- Crimes (Sentencing Procedure) Act 1999 (NSW): section 9 bond; Form 1 procedure
- Crimes (Administration of Sentences) Act 1999 (NSW): Intensive Corrections Orders

Cases cited: None cited in the judgment.