Citation: R v Johnston [2017] NSWDC 176
Court: District Court of New South Wales
Date: 5 May 2017
Judge: Berman SC DCJ
Background
The offender, a 42-year-old man with a lengthy criminal history, was released from custody on parole in November 2015. Corrective Services arranged only three nights of accommodation at a boarding house. With no ongoing plan in place, and having discovered his partner had entered a new relationship, he committed a series of commercial break-and-enter offences within days of his release.
The first offence occurred three days after release, involving a break-in at commercial premises in Haymarket where two laptops were stolen. The following day, the offender and a co-offender broke into two medical practices in York Street, Sydney, stealing multiple laptops, hard drives, an iPad, medicines, and medical equipment. CCTV footage clearly captured the offender's face and he was identified by police familiar with his record.
The principal charge was aggravated break, enter and steal (the circumstance of aggravation being that the offender was in company). A second aggravated offence was placed on a Form 1 (a procedure allowing additional offences to be taken into account at sentencing without separate conviction). The earlier Haymarket offence was charged separately as break, enter and steal.
Legal Issues
- What was the objective seriousness of the offences, and where did they fall in the range for sentencing purposes?
- What weight should be given to the offender's disadvantaged upbringing, personal circumstances, and post-release failures of support?
- Whether special circumstances existed to justify departing from the standard statutory ratio between the non-parole period and the head sentence.
- How to avoid double-counting the aggravating factor of conditional liberty, given parole had already been revoked partly on the basis of these offences.
- What sentence was appropriate, taking into account the guilty plea, remorse, and prospects for rehabilitation?
Decision
His Honour found that all three offences fell significantly below the middle of the range of objective seriousness. The targets were commercial premises rather than residential homes, the items stolen were primarily electronic equipment and did not include items of sentimental value, and the circumstances of aggravation were at the lower end of the scale. Breaking into a person's home, his Honour observed, carries a distinct additional harm to victims that does not apply with the same force to commercial burglaries.
The offender's deprived childhood, marked by a mother with serious alcohol problems, lack of parental guidance, and early onset of drug use and theft to obtain food, was treated as a significant mitigating factor. His Honour acknowledged that this background had a continuing influence on the offender's long pattern of offending. The offender's conduct in custody, including no failed drug tests and steady work in the textile area, supported a finding that he was making genuine progress.
A 25 per cent discount was applied to the sentence for the early guilty plea. His Honour was careful not to double-count the conditional liberty aggravating factor, given parole revocation had already resulted in the offender serving additional time in custody. Accordingly, the sentence was backdated to 18 May 2016.
Special circumstances were found to exist, justifying a longer-than-standard ratio of parole supervision to head sentence. Two factors drove this: the offender had spent almost no time in the community between custodial periods, and the evidence of a forensic psychologist identified a substantial list of measures needed to reduce the risk of reoffending on release. His Honour recommended that parole authorities pay careful attention to the psychologist's report and directed that a copy be attached to the warrant.
Orders Made
- Aggregate sentence of imprisonment imposed.
- Non-parole period of three years, commencing 18 May 2016.
- Head sentence of five and a half years.
- Earliest eligible release date: 17 May 2018.
- Forensic psychologist's report to be attached to the warrant for the assistance of Probation and Parole authorities.
Key Takeaways
- The District Court confirmed that commercial premises warrant a meaningfully different assessment of harm compared with residential burglaries, as victims are less likely to lose items of sentimental value and less likely to be present at the time of the offence.
- A severely disadvantaged upbringing, including parental substance abuse, absence of proper care, and early onset criminal behaviour driven by necessity, can constitute a significant mitigating factor even for a mature adult offender with an extensive criminal history.
- Where parole has already been revoked partly because of the new offences being sentenced, treating conditional liberty as an aggravating factor must be approached carefully to avoid penalising the offender twice for the same conduct.
- Special circumstances justifying departure from the standard non-parole period ratio can be established where an offender has had almost no time between custodial sentences and where expert evidence identifies substantial rehabilitative needs requiring structured post-release supervision.
- Inadequate post-release planning by correctional authorities was acknowledged as a contextual factor in the offending, and the court used its sentencing remarks to direct the attention of parole authorities to an expert report aimed at reducing the risk of reoffending.
Legislation and Cases Referenced
No specific legislation or cases were cited in the judgment text. The following legal concepts and provisions are referenced contextually:
- Standard non-parole period provisions (applicable to aggravated break, enter and steal)
- Form 1 procedure (taking additional offences into account at sentencing)
- Conditional liberty as a statutory aggravating factor in sentencing
- Special circumstances (justifying variation from standard non-parole period ratio)
- 25 per cent sentencing discount for early guilty plea