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District Court 20 April 2018

R v Cahill

[2018] NSWDC 169

DrugsTheft & property
CRIMINAL LAW SENTENCE FORM 1 LARCENY ON PAROLE AT TIME OF OFFENDING OFFENCES COMMITTED TO FUND DRUG HABIT

Citation: R v Cahill [2018] NSWDC 169
Court: District Court of New South Wales
Date: 20 April 2018
Judge: Berman SC DCJ

Background

The offender, a 57-year-old man with a criminal history dating back to 1993 and having spent roughly two-thirds of his life in custody, appeared for sentence on three offences of break and enter committed over a few days in early May 2016. All offences occurred while he was on parole for a similar offence. He pleaded guilty approximately two weeks before the scheduled trial date.

The offending took place across several residential properties in the inner Sydney suburbs of Annandale, Lilyfield, and Glebe. The offences involved the offender entering homes, in some instances while residents were present or asleep inside. Items stolen included a laptop, a Louis Vuitton handbag, a crocodile skin wallet, cash, and personal cards. The offender left behind identifying items at multiple scenes, including his shoes, a bumbag, and a single sock, all of which assisted police in identifying him through DNA analysis.

A Form 1 (a document listing additional offences the court takes into account when sentencing, without recording separate convictions) accompanied the second specific count. The court considered that the offending was motivated by the offender's drug habit and reflected what a psychologist described as an entrenched pattern of offending.

  • What aggregate sentence was appropriate for three serious break-and-enter offences, given the offender's extensive criminal history and parole status at the time of offending?
  • What discount, if any, applied to the sentence in light of the late guilty plea?
  • Whether a finding of special circumstances was warranted to extend the proportion of the sentence spent on parole.
  • Whether a standard non-parole period applied, and if not, why not.

Decision

Berman SC DCJ imposed an aggregate sentence of seven years imprisonment with a non-parole period of three and a half years, commencing 19 March 2017. The court identified the offences as serious, particularly because the offender entered homes where residents were present, but assessed them as falling below the most serious examples of their kind. The offender used minimal planning, improvised tools (a wheelie bin, his own socks as gloves), and had no equipment with him.

The late guilty plea attracted a discount of approximately 15 percent. The court declined to apply the standard non-parole period, with reasons set out in the sentencing remarks. A finding of special circumstances was made in the offender's favour, extending the parole period beyond the statutory norm to allow for greater supervision and support upon release.

The court placed considerable weight on both general and personal deterrence. It noted that break-and-enter offences carry serious community harm beyond the loss of property, including the erosion of victims' sense of safety in their own homes. The court also noted that the sentence would be partially accumulated on the balance of the offender's existing parole term, which had been breached.

The offender was referred for assessment for the compulsory drug treatment program, with the court acknowledging the significant challenges he would face upon release.

Orders Made

  • Aggregate sentence of imprisonment imposed, commencing 19 March 2017.
  • Non-parole period of three and a half years, expiring 18 September 2020 (eligible for release to parole on that date).
  • Referral for assessment of suitability for the compulsory drug treatment program.
  • Two matters on the section 166 certificate dismissed.

Key Takeaways

  • The District Court applied a 15 percent sentencing discount for a guilty plea entered approximately two weeks before trial, reflecting that the plea was not entered at the earliest opportunity.
  • A finding of special circumstances can be supported by a combination of factors, including an offender's need for extended post-release supervision to address entrenched drug dependency and the accumulation of sentences arising from parole breaches.
  • Break-and-enter offences committed while a person is on parole for similar offending are treated as a significant aggravating factor, engaging both general and personal deterrence as sentencing considerations.
  • An "entrenched pattern of offending" (described in psychological evidence) corresponds to what courts characterise as a continuing attitude of disobedience to the law, and weighs against findings of rehabilitation or reduced culpability.
  • Where the standard non-parole period is not applied, a sentencing court is required to explain its reasons for departing from that benchmark in its sentencing remarks.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW): offences of aggravated break, enter and commit serious indictable offence (s 112); attempt to commit same
- Criminal Procedure Act 1986 (NSW): Form 1 procedure; s 166 certificate

No cases were cited in the provided judgment text.