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District Court 2 August 2017

R v Babic

[2017] NSWDC 477

DrugsTheft & property

Citation: R v Babic [2017] NSWDC 477
Court: District Court of New South Wales
Date: 2 August 2017
Judge(s): Tupman DCJ

Background

The offender was before the District Court for sentencing on 10 substantive charges of break, enter and steal and aggravated break, enter and steal, following early guilty pleas entered in the Local Court. The charges arose from a series of offences committed between 26 December 2015 and 31 January 2016, targeting licensed premises (including golf clubs, bowling clubs and a general store), service stations, and automated teller machines across regional New South Wales. The offences were uncovered through a dedicated police strike force investigation.

The offender acted alone in some instances and in company with co-offenders in others. A recurring feature of the offending was the targeting of floor safes and ATMs, often using angle grinders and other tools. The offender asked the court to take into account a further 12 offences on a Form 1 schedule (a procedural mechanism allowing additional, uncharged or unsentenced offences to be considered on sentencing without separate punishment), when dealing with one of the substantive charges.

The sentencing court heard that the offending was closely connected to the offender's drug use. The offender had a substantial criminal record in both New South Wales and Queensland, though the court also found him to be genuinely remorseful and contrite.

  • What aggregate sentence was appropriate for 10 substantive offences under ss 112(1)(a) and 112(2) of the Crimes Act 1900 (NSW), having regard to the objective seriousness of the offending and the personal circumstances of the offender?
  • How should the Form 1 offences be reflected in the sentence for sequence 9?
  • How should the principle of totality be applied when the sentences imposed by the court were to be served partially concurrently with a pre-existing sentence imposed by another judge?
  • Were there special circumstances justifying a departure from the standard ratio between the non-parole period and the overall sentence?
  • What compensation orders were appropriate for damage suffered by victims?

Decision

Tupman DCJ imposed an aggregate sentence of 6 years on all 10 substantive charges, comprising a non-parole period of 4 years commencing 5 August 2016 and expiring 4 August 2020, with a parole period of 2 years thereafter. The court applied s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) to set a single aggregate term rather than individual consecutive or concurrent sentences, with indicative sentences set for each sequence.

The court found that the objective seriousness of the offending was significant. The offences were planned and premeditated, involved the use of tools, caused considerable property damage, and were committed across multiple locations over a sustained period. The involvement of co-offenders in many of the aggravated offences engaged the circumstance of aggravation under s 112(2), attracting a maximum penalty of 20 years imprisonment per count. The Form 1 offences were taken into account when sentencing on sequence 9.

In mitigation, the court gave weight to the early guilty pleas, the offender's genuine remorse and contrition, and the connection between his drug dependency and the offending. Consistent with the principle in R v Ponfield (1999) 48 NSWLR 327, the offender's prospects of rehabilitation were assessed as contingent on remaining free of illegal drugs.

The court identified special circumstances justifying a longer-than-standard parole period, primarily because the sentences were partially accumulating upon a pre-existing sentence imposed by another judge. Applying the totality principle, the court determined that an appropriate overall term for all matters (including those sentenced by the other judge) would have been 6.5 years with a 4.5-year non-parole period. Commencing the aggregate sentence on 5 August 2016 gave effect to that overall outcome.

Orders Made

  • The offender was convicted on all counts.
  • An aggregate sentence of 6 years was imposed under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), comprising a non-parole period of 4 years commencing 5 August 2016 and expiring 4 August 2020, and a parole period of 2 years commencing 5 August 2020 and expiring 4 August 2022.
  • Compensation orders were made as follows:
  • Sequence 1: $1,060 to Bogan Gate Golf Club
  • Sequence 5: $577.50 to Braidwood Return Soldiers Club
  • Sequence 8: $2,577.63 to Acerta
  • Sequence 10: $8,362.50 to GIO
  • Sequence 20: $3,994.24 to Liverpool Catholic Club
  • Sequence 13: $13,589.74 to Allianz Australia Insurance Ltd
  • A recommendation was made that the offender be released to supervised parole at the expiration of the non-parole period, with special reference to drug and alcohol relapse prevention and psychiatric or psychological treatment.

Key Takeaways

  • Planned, tool-assisted break-and-enter offending targeting commercial premises and ATMs across multiple locations was treated as objectively serious, warranting a substantial custodial term even with strong mitigating factors present.
  • Under the totality principle, a sentencing court must assess what the overall period of imprisonment would have been had all matters (including those before a different judge) been sentenced together, and calibrate the commencement date and length of the new sentence accordingly.
  • A genuine nexus between drug dependency and property offending is a recognised mitigating factor, though it does not displace the need for meaningful punishment; the court here linked prospects of rehabilitation directly to the offender's capacity to remain drug-free.
  • Special circumstances justifying a longer parole period can arise from partial accumulation with pre-existing sentences, reflecting the need to provide an adequate period of supervised reintegration.
  • Form 1 offences do not attract separate punishment but are taken into account to increase the sentence for the nominated substantive charge, reflecting the broader pattern of conduct.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 112(1)(a) and 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A

Cases:
- R v Ponfield (1999) 48 NSWLR 327