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District Court 29 September 2017

R v JERKIC, Ricky

[2017] NSWDC 317

Theft & propertyPublic order & justice offences
CRIMINAL SENTENCE BREAK, ENTER AND STEAL PROPERTY FORM 1 OFFENCES OFFENCE COMMITTED WHILST ON PAROLE LIMITED PLANNING

Citation: R v Jerkic, Ricky [2017] NSWDC 317
Court: District Court of New South Wales
Date: 29 September 2017
Judge: Judge S Norrish QC

Background

The offender, a 27-year-old Queensland resident, appeared for sentence on a series of offences committed in May and June 2016 in New South Wales. The principal offences were three counts of break, enter and steal from private residences, with two Form 1 matters attached (taking and driving a conveyance without consent, and dishonestly obtaining property by deception). Additional charges included resisting a police officer in the execution of his duty.

At the time of the offending, the offender was on parole in New South Wales. His parole was subsequently revoked, not directly because of these offences, but because he failed to report to parole authorities and could not be contacted. He had a lengthy criminal history in Queensland and a long-standing drug dependency. He had undertaken a residential rehabilitation program while on parole, but the court made no finding of remorse.

The offender pleaded guilty after committal for sentence from the Local Court in February 2017, attracting a 25% utilitarian discount. A significant complicating factor was that the offender also faced revoked parole in Queensland, with an expectation that upon release from New South Wales custody he would be extradited to Queensland to serve that balance.

  • What sentences were appropriate for the principal offences and Form 1 matters, applying the guideline judgment in R v Thompson and Houlton?
  • How should the court approach the interaction between the revocation of parole and the imposition of new sentences, to avoid "double-dipping" in aggravation?
  • Whether special circumstances existed under s 44 of the Crimes (Sentencing Procedure) Act 1999 justifying an extension of the parole period relative to the non-parole period.
  • How the prospect of the offender serving further custody in Queensland upon release from New South Wales should affect the fixing of the non-parole period.
  • How the principle of totality applied across the multiple sentences imposed.

Decision

Judge Norrish applied a 25% discount across all offences to reflect the utilitarian value of the guilty pleas, consistent with R v Thompson and Houlton. The offences were characterised as opportunistic rather than impulsive, involving limited planning and no force or threats against any victim, but were aggravated by being committed against private residences and while the offender was on conditional liberty.

On the parole revocation issue, the court drew on the Court of Criminal Appeal's consideration of "double-dipping" risks: where breach of conditional liberty is already treated as an aggravating factor under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999, it would be inappropriate to also accumulate the full sentence on top of an extensive balance of parole. Here, however, the balance of parole already served was relatively short (one month and 21 days), so the court concluded the accumulation effect could be adequately addressed through a finding of special circumstances rather than a different commencement date.

Special circumstances were found on two bases. First, the partial accumulation within the sentences themselves was of itself a special circumstance. Second, the offender required an extended period of supervised parole in New South Wales to support his reintegration and address his entrenched drug dependency. The court also noted, as a marginal but relevant consideration, that the offender was likely to be extradited to Queensland upon release, potentially reducing the effective community-based parole supervision available under the New South Wales sentence.

The total effective sentence imposed was five years' imprisonment, commencing 22 July 2016 (the date the balance of parole expired), with eligibility for release to parole on 21 March 2019.

Orders Made

  • Convicted of break, enter and steal (principal offence, 29 May 2016, with two Form 1 matters): non-parole period of 1 year and 6 months commencing 22 September 2017, expiring 21 March 2019; balance of sentence of 2 years and 3 months, expiring 21 June 2021.
  • Convicted of resisting a police officer in the execution of his duty: 9 months' imprisonment commencing 22 July 2017, expiring 21 April 2018.
  • Convicted of break, enter and steal (further offence): non-parole period of 18 months commencing 22 September 2017, expiring 21 March 2019; balance of sentence of 1 year and 6 months, expiring 21 September 2020.
  • Total effective sentence: 5 years' imprisonment, commencing 22 July 2016.
  • Eligible for release to parole: 21 March 2019.
  • Special circumstances found under s 44 of the Crimes (Sentencing Procedure) Act 1999.

Key Takeaways

  • Where breach of conditional liberty is relied upon as an aggravating factor under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999, courts must guard against "double-dipping" by also fully accumulating new sentences on top of an extensive balance of parole. The District Court addressed this by using a special circumstances finding rather than adjusting the commencement date, because the balance of parole already served was short.
  • A finding of special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 can be supported by more than one independent basis, including both partial accumulation within the sentencing structure and the offender's need for extended supervision to address rehabilitation needs.
  • The prospect of an offender being extradited to another state to serve revoked parole upon release from a New South Wales sentence is a relevant, though marginal, consideration in fixing the non-parole period, given it affects the practical availability of supervised parole in the community.
  • Opportunistic residential burglaries committed while on parole, without force or threats but involving multiple premises, attract meaningful custodial sentences, with the private residential nature of the offences and breach of conditional liberty both operating as aggravating features.
  • Under R v Thompson and Houlton, a 25% utilitarian discount applied where the offender was committed for sentence from the Local Court and entered guilty pleas at that stage.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 58, 112(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2), 44

Cases:
- Attorney General's Application (No 1) of 2002 (2002) 56 NSWLR 147
- Mill v The Queen (1988) 166 CLR 59
- Pearce v The Queen (1998) 194 CLR 610
- R v Hammoud [2000] NSWCCA 540
- R v Harris [2007] NSWCCA 130
- R v Henry and Ors (1999) 46 NSWLR 346
- R v Thompson and Houlton (2000) 49 NSWLR 383
- R v Todd (1982) 2 NSWLR 517
- Regina v Ponfield [1999] NSWCCA 422