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District Court 9 February 2017

R v Marks

[2017] NSWDC 23

DrugsTheft & propertyPublic order & justice offences
CRIMINAL LAW SENTENCE FORM 1 BREACH OF BONDS BREAK ENTER AND STEAL GOODS IN CUSTODY

Citation: R v Marks [2017] NSWDC 23
Court: District Court of New South Wales
Date: 9 February 2017
Judge: Berman SC DCJ

Background

The offender, a 42-year-old man with 29 prior offences of break, enter and steal, appeared for sentencing on two fresh offences of break, enter and steal committed in July and August 2016, together with related Form 1 matters and a goods in custody charge. He had committed those offences while subject to two suspended sentences (section 12 bonds) and a section 9 bond, all of which fell to be dealt with at the same time.

The offences involved commercial premises in the Lake Macquarie and Belmont areas. The offender broke into a medical centre, a dry cleaning business, and a hairdresser, stealing cash, business equipment, and other goods. He also appeared for sentence in relation to two earlier break-and-enter offences at licensed premises, where he stole a fixed safe on one occasion and returned to the same venue five days later. A separate and unrelated offence of peep and pry at a public library was also before the court.

The offender had spent a significant portion of his adult life in custody and was assessed as institutionalised. His criminal history was substantially funded by drug addiction, and his rehabilitation prospects were considered closely tied to his ability to address that addiction.

  • What sentences were appropriate for the fresh offences of break, enter and steal, including the Form 1 matters?
  • How should the breaches of the existing suspended sentences and section 9 bond be dealt with?
  • Whether special circumstances existed to justify a longer-than-standard parole period.
  • Whether the offender was eligible for referral to the Compulsory Drug Treatment Program.

Decision

His Honour identified three overlapping purposes of imprisonment applicable in this case: general deterrence, personal deterrence, and incapacitation. However, the court was careful to note that incapacitation cannot justify a sentence beyond what the objective gravity of the offending warrants. The offending was described as serious, not merely because of its nature, but because of its persistent repetition.

The court rejected the offender's attempt to excuse his conduct by reference to drug addiction, finding that the decision to use drugs and to fund that use through crime was the offender's alone. Some limited weight was given to his background and the support of his family, but his expressed remorse was tempered by his apparent reluctance to fully accept responsibility.

An aggregate sentence of five years imprisonment with a non-parole period of three years was imposed for the fresh offences, to date from 12 August 2017. The revived suspended sentences added further terms running from August and November 2016 respectively. Special circumstances were found, grounded in the offender's institutionalisation and his need for an extended supervisory period upon release.

The overall sentence produced a total non-parole period of four years and a head sentence of six years. His Honour noted that this outcome coincidentally rendered the offender eligible for the Compulsory Drug Treatment Program and referred him to the Drug Court, while expressly stating that the sentence had not been fashioned to achieve that eligibility.

Orders Made

  • Breach of section 9 bond (peep and pry): Section 10A order imposed under the Crimes (Sentencing Procedure) Act; no further penalty beyond conviction.
  • Breach of section 12 bond (offence of 15 September 2015): Suspension revoked; 15 months imprisonment, commencing 12 August 2016.
  • Breach of section 12 bond (offence of 20 September 2015): Suspension revoked; 15 months imprisonment, commencing 12 November 2016.
  • Fresh offences of 4 July 2016 and 3 August 2016 (with Form 1 matters): Aggregate sentence of 5 years imprisonment, commencing 12 August 2017, with a non-parole period of 3 years (expiring 11 August 2020).
  • Overall: Total non-parole period of 4 years; total head sentence of 6 years.
  • Offender referred to the Drug Court for consideration for the Compulsory Drug Treatment Program.
  • Back-up offences on the section 166 certificate withdrawn and dismissed.

Key Takeaways

  • The District Court confirmed that while incapacitation is a legitimate sentencing purpose, it cannot operate to extend a sentence beyond what the objective gravity of the offending independently justifies.
  • Where an offender has been assessed as institutionalised, that finding can constitute special circumstances under the Crimes (Sentencing Procedure) Act, warranting a longer parole tail to support supervised reintegration.
  • Drug addiction does not of itself mitigate the moral culpability of an offender who chooses to fund that addiction through criminal activity; the court placed responsibility for both the drug use and the offending squarely with the offender.
  • A court may refer an offender to the Drug Court for the Compulsory Drug Treatment Program where eligibility arises from the sentences imposed, but it is impermissible to shape a sentence with that eligibility as an objective.
  • Persistent recidivism across a long criminal history, combined with offences committed while on multiple bonds, will weigh heavily against an offender at sentence even where personal circumstances such as family support are present.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW): sections 9, 10A, 12, 166

Cases cited: None recorded in the judgment or metadata.