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District Court 6 May 2016

R v Kevin Doyle

[2016] NSWDC 66

Theft & propertyFirearms & weapons
AGGRAVATED BREAK AND ENTER WHILE ARMED

Citation: R v Kevin Doyle [2016] NSWDC 66
Court: District Court of NSW
Date: 6 May 2016
Judge: Mahony SC DCJ

Background

The offender pleaded guilty to aggravated break and enter while armed, contrary to s 112(2) of the Crimes Act 1900, which carries a maximum penalty of 20 years imprisonment and a standard non-parole period of 5 years. The offending occurred in the early hours of 6 June 2015 at a residential property in Temora, New South Wales.

The victim was a 77-year-old woman living alone. The offender entered her home at approximately 1am, wearing a face covering and carrying a 15-centimetre serrated knife. He demanded money, credit cards and a PIN number, ransacked the premises, threatened the victim with the knife, made a kicking motion towards her while she sat on a lounge, and ultimately stole $65 cash, two watches, and prescription medication. Police located him at nearby premises that same morning, still in possession of the stolen items and the knife.

The offender had a lengthy criminal history dating to juvenile offending in 2007, including prior convictions for break and enter, aggravated break and enter, assault occasioning actual bodily harm, stalking and intimidation, and a range of property offences. He had been in custody since the date of his arrest.

  • Whether the offence fell within the mid-range of objective seriousness for an offence under s 112(2)
  • What weight to give the offender's mental health diagnosis (chronic paranoid schizophrenia) and history of poly-substance abuse when determining sentence
  • Whether a finding of special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 was warranted, justifying a non-parole period shorter than the 5-year standard
  • How to balance general and specific deterrence against the offender's significant personal circumstances, including a deprived upbringing and ongoing psychiatric illness

Decision

Both the Crown and defence agreed the offending fell within the mid-range of objective seriousness. Several aggravating factors were accepted: the offence occurred at night in the victim's home; the victim was elderly and living alone, making her particularly vulnerable; the offender was armed with a weapon; he threatened its use; and he made a physically threatening gesture towards the victim while she was fully compliant.

A psychiatrist, Dr Pulley, provided a report diagnosing the offender with chronic paranoid schizophrenia, with a history of drug-induced psychosis from the age of 18 and heavy poly-substance abuse involving methamphetamine, alcohol, opiates and cannabis. Dr Pulley concluded it was likely the offender was experiencing an exacerbation of psychotic symptoms, including auditory hallucinations and persecutory delusions, at the time of the offence. The court accepted this evidence as relevant to the assessment of moral culpability, though the offender's substance abuse also had to be weighed in the balance.

His Honour found special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, which allows a court to depart from the standard non-parole period ratio where justified. The court pointed to the offender's mental illness, substance abuse issues, and the need for extended supervision and rehabilitation upon release. The court also applied the principle from Bugmy v R [2013] HCA 37, that the effects of profound childhood deprivation do not diminish over time and may be taken into account on sentence at any stage of an offender's life.

The offender received a 25% discount on sentence for his early guilty plea. The non-parole period of 3 years was set below the 5-year standard non-parole period, reflecting the special circumstances finding. The total sentence was 4 years and 6 months.

Orders Made

  • Convicted of aggravated break and enter while armed contrary to s 112(2) of the Crimes Act 1900
  • Non-parole period of 3 years, commencing 6 June 2015 and expiring 5 June 2018
  • Additional term of 1 year and 6 months, commencing 6 June 2018 and expiring 5 December 2019
  • Total sentence: 4 years and 6 months
  • Back-up charge of destroy/damage property under s 195(1)(a) of the Crimes Act 1900 (on the s 166 Certificate): withdrawn and dismissed

Key Takeaways

  • The District Court confirmed that chronic paranoid schizophrenia and active psychotic symptoms at the time of an offence are relevant to the assessment of moral culpability, even where the offending was also connected to voluntary substance abuse.

  • Under Bugmy v R [2013] HCA 47, the effects of severe childhood deprivation are a recognised mitigating consideration that do not lose their relevance with repeated offending and may be taken into account on subsequent sentences throughout an offender's life.

  • A finding of special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 was supported here by the combination of mental illness, entrenched poly-substance dependence, and the need for extended post-release supervision to manage rehabilitation.

  • The standard non-parole period of 5 years for s 112(2) offences operates as a guidepost rather than a floor; the sentencing court recorded its reasons for setting a shorter non-parole period, as required by statute.

  • An early guilty plea to a serious indictable offence attracted a 25% discount on sentence, consistent with established sentencing practice.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 112(2), 195(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44(2)

Cases
- Bugmy v R [2013] HCA 37
- DPP v De La Rosa (2010) 79 NSWLR 1
- Kennedy v R [2010] NSWCCA 260