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District Court 8 December 2017

R v Shelley

[2017] NSWDC 376

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW SENTENCE FORM 1 BREAK ENTER AND STEAL SERIOUS HOME INVASION ARMED ROBBERY

Citation: R v Shelley [2017] NSWDC 376
Court: District Court of New South Wales
Date: 8 December 2017
Judge: Berman SC DCJ

Background

The offender pleaded guilty to aggravated break, enter and commit a serious indictable offence (armed robbery causing actual bodily harm), with related offences placed on a Form 1 to be taken into account on sentence. The principal offence arose from events on 22 November 2016 at a residential apartment complex in Haymarket, Sydney.

The offender broke into a resident's apartment at night, armed himself with kitchen knives, and confronted the victim in his bedroom. He demanded cash and valuables at knifepoint, threatened to kill the victim on multiple occasions, physically assaulted him, and held a knife blade to his throat in an attempt to force open a safe. He ultimately stole money, personal items, bank cards, and documents before fleeing by taxi and using the victim's credit card to pay the fare.

The offender was arrested the same day. He had a significant prior criminal history including offences of break, enter and steal and aggravated dwelling-related offences, and was on parole and a suspended Drug Court sentence at the time of the offending.

  • What sentence was appropriate for an offence of aggravated break, enter and commit a serious indictable offence, having regard to the objective gravity of the conduct?
  • How should the court weigh the offender's profound childhood disadvantage and lengthy drug dependency as mitigating factors?
  • Whether a finding of special circumstances was warranted to extend the parole period.
  • How to calculate the commencement date of the sentence, given concurrent custody for Drug Court matters and prior parole.

Decision

Berman SC DCJ assessed the objective gravity of the offending as well above the midpoint of the range for this offence. The serious indictable offence committed was armed robbery, described as one of the most serious offences on the criminal calendar, and the aggravating circumstance was the infliction of actual bodily harm upon a victim in his own home.

The court accepted that the Fernando and Bugmy principles applied directly. The offender had experienced severe abuse from infancy, including violence and sexual assault within the family, placement in institutional care where he suffered further abuse, and exposure to heroin by a friend of his father's at age 12. His Honour accepted these matters as genuine mitigating factors, noting that not all offenders face the same choices in life. Consistent with R v Henry, the lengthy history of drug dependency commencing in childhood was also treated as a mitigating factor.

A 25 per cent reduction was applied for the early guilty plea. Reduced weight was given to general deterrence in light of the offender's intellectual functioning, assessed at the third percentile. His Honour noted the offender had demonstrated limited insight into the violence he inflicted and acknowledged findings that the offender at times committed offences in order to return to the structure of custody.

The court found modest special circumstances existed, balancing the risk that an extended parole period could lead to earlier reoffending against the need for supervised support if the offender was to sustain life outside custody. His Honour concluded the non-parole period of five years represented the minimum that properly reflected the objective seriousness of the offending.

Orders Made

  • Head sentence of seven years imprisonment, commencing 22 November 2016.
  • Non-parole period of five years, also commencing 22 November 2016.
  • Earliest eligible parole date: 21 November 2021.
  • Offender referred for assessment for suitability to enter the compulsory drug treatment program.
  • Related offences placed on a Form 1 and taken into account.

Key Takeaways

  • The District Court confirmed that armed robbery committed during a home invasion, accompanied by actual bodily harm, sits well above the midpoint of objective gravity for the offence of aggravated break, enter and commit a serious indictable offence.
  • Under the principles in R v Fernando (1992) 76 A Crim R and Bugmy v The Queen (2013) 249 CLR 571, evidence of severe childhood disadvantage, including institutionalisation and sustained abuse, properly informs the weight given to personal deterrence and rehabilitation in sentencing.
  • A lengthy history of heroin dependency commencing in childhood constitutes a mitigating factor, consistent with R v Henry (1999) 46 NSWLR 346.
  • Where an offender's intellectual functioning places them at the third percentile, the court may reduce the weight ordinarily given to general deterrence in formulating the sentence.
  • Determining the commencement date requires care where the offender is in custody for concurrent matters: treating the concurrent custody as an aggravating factor and simultaneously commencing the sentence from a later date would amount to impermissible double counting.

Legislation and Cases Referenced

Cases:
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- R v Fernando (1992) 76 A Crim R 58
- R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R 149

Legislation:
No specific legislation was cited in the text of the judgment. The offence of aggravated break, enter and commit a serious indictable offence carries a maximum penalty of 20 years and a standard non-parole period of five years under the relevant New South Wales provisions.