Citation: R v Tighe [2016] NSWDC 412
Court: District Court of New South Wales
Date: 10 November 2016
Judge: Berman SC DCJ
Background
The offender had been sentenced in 2012 for a significant number of armed robbery offences. He was released on parole in January 2015 but resumed drug use shortly after release, turning to synthetic cannabis and synthetic cocaine obtained from a tobacconist in exchange for cigarettes.
To fund that arrangement, the offender and at least one other person committed ten offences of aggravated break, enter and steal between 2015 and 2016. The targets were small businesses, including newsagencies and convenience stores. The offenders typically used a crowbar to force entry, disguised themselves from CCTV cameras, and took cigarettes, alcohol, cash, and on one occasion two iPads.
One offence, on 22 May 2015, was more serious than the others. The owner of a shop came downstairs in response to the noise. The offender pointed a crowbar at him while his co-offender struggled with the owner, who retreated fearing for his safety.
Legal Issues
- What aggregate sentence was appropriate for ten offences of aggravated break, enter and steal, having regard to the standard non-parole period, the offender's subjective circumstances, and the need to reflect the totality of the offending?
- Whether the standard non-parole period of five years should be imposed, and if not, what non-parole period was appropriate?
- How to treat the aggravating factor of offending while on parole, including avoiding double-counting in relation to presentence custody?
- Whether special circumstances existed justifying a departure from the statutory ratio between the non-parole period and the head sentence?
- How to approach parity with the sentence imposed on a co-offender referred to the Drug Court?
Decision
His Honour identified several factors bearing on the objective seriousness of the offending. The fact that all ten offences involved non-residential commercial premises placed them at a lower level of objective criminality compared to break-and-enter offences targeting homes. Nothing of sentimental value was taken, and there was no gratuitous damage or vandalism. Against that, the sheer number of offences demanded a substantial custodial term reflecting the totality of the conduct.
On the offender's subjective circumstances, His Honour noted a deeply troubled upbringing: both parents died when he was young, his father was a violent drug dealer who died in custody, and he was raised by relatives who were themselves drug users. The court accepted that these circumstances bore on the offender's capacity to make sound decisions, particularly his decision to resume drug use after release and then fund his addiction through criminal activity. The offender pleaded guilty at the earliest opportunity, warranting a 25 per cent discount.
His Honour declined to impose the standard non-parole period of five years, with reasons given in the remarks on sentence. Special circumstances were found to exist, justifying a longer parole period. Two factors drove that finding: the offender's longstanding drug dependency would require close supervision, and potentially residential rehabilitation, upon release; and the proximity of these sentences to the armed robbery sentences made it appropriate for significant parole supervision to apply.
On parity, His Honour noted that the co-offender had received a four-year-and-six-month suspended sentence through the Drug Court. However, the court concluded that meaningful comparison was not possible given the absence of any information about that co-offender's subjective features or whether she had also been on parole at the time of offending.
Orders Made
- Aggregate sentence imposed comprising a non-parole period of three and a half years and a head sentence of five and a half years, commencing 13 June 2016.
- Eligible for release to parole on 12 December 2019.
- Individual indicative sentences (absent the aggregate): three years (head) with an 18-month non-parole period for each of the nine offences; three and a half years (head) with a two-year non-parole period for the 22 May 2015 offence.
Key Takeaways
- Offending while on parole is a significant aggravating factor, but the sentencing court must guard against double-counting by not simultaneously withholding credit for presentence custody and treating the parole circumstance as an aggravating factor.
- A break-and-enter offence against non-residential commercial premises carries lower objective criminality than the equivalent offence against residential premises, a distinction the District Court applied when assessing where within the range each offence fell.
- Where an offender's childhood involved exposure to drug use, violence, and poor role models from an early age, those circumstances are relevant to the assessment of moral culpability, even where the offending is objectively serious.
- Parity with a co-offender's sentence cannot be applied in any meaningful way where the court has no information about that co-offender's subjective circumstances or the conditions under which they were sentenced.
- Special circumstances justifying a reduction in the non-parole period ratio can arise from a combination of a longstanding drug dependency requiring post-release supervision and the structural relationship between successive sentences served largely in custody.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), including provisions relating to standard non-parole periods and aggregate sentencing
Cases:
No specific cases were cited in the judgment text or metadata.