Citation: R v Pintley; R v Barber [2017] NSWDC 224
Court: District Court of New South Wales
Date: 12 May 2017
Judge(s): Berman SC DCJ
Background
Two co-offenders, a man and a woman in a relationship at the time, were sentenced for a single offence of break, enter and steal at a pie shop in a Flemington Plaza in June 2016. The male offender used a jimmy bar to force the front door while the female offender acted as lookout and briefly entered the premises. Together they took cash from the till, an iPad, and a passport, with the total value of items taken falling between approximately $200 and $400.
Both offenders were apprehended quickly. The female offender identified her co-offender to police, and he had left fingerprints at the scene. CCTV footage captured the actions of both. Both pleaded guilty at the earliest opportunity.
The male offender had a lengthy criminal history including many prior break, enter and steal convictions and multiple periods of imprisonment. He was on parole at the time of the offence. The female offender had a criminal history but no prior offences of this kind and had never served a custodial sentence.
Legal Issues
- What was the appropriate sentence for each offender, having regard to the objective seriousness of the offence and the differing roles each played?
- How should long-term drug addiction and disadvantaged personal backgrounds be taken into account in mitigation?
- How should the principle of parity be applied when sentencing co-offenders with materially different histories?
- What weight should be given to the male offender's parole status at the time of offending?
- Whether a non-custodial option (an intensive corrections order) was appropriate for the female offender.
Decision
The court assessed the offence as well below the middle range of objective seriousness. These were non-residential commercial premises, the offence occurred at a time when no one was likely to be inside, and the value of property taken was modest. The court distinguished break and enter offences involving homes, noting that residential break-ins carry greater harm due to their impact on personal security and the sentimental value of items stolen.
Both offenders received a 25 per cent discount on their sentences for early guilty pleas. The court applied the parity principle, meaning neither offender's sentence should give rise to a justifiable grievance when compared with the other's. While both played distinct roles, the court accepted that the male offender's role was the more significant of the two.
The court gave substantial weight to both offenders' histories of long-term drug addiction and the circumstances in which that addiction developed. For the male offender, the court applied the principles from Bugmy v The Queen and R v Fernando, taking into account childhood exposure to drug dealing, inadequate supervision, and sexual abuse suffered as a child. The court also acknowledged his realistic understanding of the challenges of rehabilitation and his genuine desire to change, and found special circumstances justifying an extended parole period relative to the non-parole period.
For the female offender, the court was not yet satisfied that full-time custody was necessary and ordered an assessment for an intensive corrections order. The court indicated that her conduct during the assessment period, including drug testing, would be material to whether that form of sentence was ultimately imposed.
Orders Made
- The male offender was sentenced to imprisonment with a non-parole period of 14 months, commencing 30 September 2016, and a head sentence of two and a half years. His non-parole period was set to expire on 29 November 2017, on which date he was to be released to parole.
- The commencement date of his sentence was set three months after he was returned to custody following his parole breach, to avoid double-counting.
- An assessment for an intensive corrections order was ordered for the female offender, with final sentencing of her deferred pending that assessment.
Key Takeaways
- The District Court confirmed that breaking into non-residential premises is treated as less serious than a residential break-in, with the absence of occupants and low value of property taken pushing the offence well below the mid-range of seriousness.
- Where an offender is on parole at the time of a new offence, the sentencing court must take care not to double-count the parole breach when fixing the commencement date of the new sentence.
- Under the principles in Bugmy v The Queen and R v Fernando, an offender's severe childhood disadvantage, including early exposure to drug use and criminal behaviour, and sexual abuse, can significantly reduce the weight given to general deterrence and inform a more nuanced approach to specific deterrence.
- Parity requires that co-offenders sentenced for the same offence should not have a justifiable grievance when comparing their sentences, even where one has a far more serious criminal history than the other.
- Special circumstances justifying a longer parole tail relative to the non-parole period can arise from an offender's entrenched drug addiction and the corresponding need for extended post-release supervision and support.
Legislation and Cases Referenced
Cases:
- Bugmy v The Queen [2013] HCA 37
- R v Fernando (1992) 76 A Crim R 58
Legislation:
No specific legislation was cited in the provided text of the judgment.