Citation: R v Stewart [2018] NSWDC 170
Court: District Court of New South Wales
Date: 2 July 2018
Judge: M L Williams SC DCJ
Background
The offender, a 23-year-old man with a lengthy record of dishonesty offences dating from 2013, appeared for sentencing on charges arising from a residential burglary at Curl Curl. On the night of 17 April 2017, he entered the victim's home and stole a laptop, handbag, wallet, cash, and credit cards. He then used the credit cards to purchase food, drugs, and taxi fares.
The offender was already serving multiple terms of imprisonment at the time of sentencing, including a sentence for a separate aggravated break and enter offence. He had been on parole when he committed the current offences, having only recently been released for a prior break and enter matter.
He pleaded guilty to one count of aggravated entering a dwelling-house with intent to commit a serious indictable offence under s 112(2) of the Crimes Act 1900 (maximum 14 years) and one count of larceny under s 117 (maximum 5 years). Five counts of dishonestly obtaining property by deception were placed on a Form 1 to be taken into account on the principal offence.
Legal Issues
- What term of imprisonment was appropriate, having regard to the aggravating and mitigating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999?
- What discount should be applied for the utilitarian value of the guilty plea?
- How should the new sentence be structured relative to the existing sentences already being served, having regard to principles of totality and accumulation?
- Whether special circumstances existed justifying a departure from the standard non-parole period ratio, and whether a referral to the Compulsory Drug Treatment Correctional Centre was appropriate?
Decision
His Honour found the offending fell below the mid-range of objective seriousness. The larceny was of limited value, the items were relatively easily replaceable, and the loss was not substantial. These findings informed the overall assessment of the appropriate head sentence.
The court identified several aggravating factors under s 21A: the offender's extensive prior record of dishonesty offences, the fact he was on conditional liberty (parole) at the time, and that the offence was committed for financial gain, including using stolen credit cards to purchase drugs. Against these, the court recognised as mitigating factors the modest scale of the loss and the guilty plea, which attracted a 25% discount for its utilitarian value.
On the purposes of sentencing under s 3A, his Honour emphasised general and specific deterrence. The court noted the escalating pattern of the offender's dishonesty offending and the community's entitlement to feel safe in their homes. The prior guideline judgment in R v Ponfield was noted to be of limited assistance in the circumstances, with the statutory factors under s 21A providing the more relevant framework.
The court found special circumstances, given the offender's youth, the nature of his methamphetamine addiction, and his participation in rehabilitation programs while in custody. All offences arose from a single episode of criminality and were ordered to run concurrently. The new aggregate sentence was structured to commence on 10 September 2018, a date prior to the offender's earliest possible release date of 10 September 2019, to achieve an appropriate period of accumulation while respecting totality.
Orders Made
- The offender was convicted of each offence.
- Indicative sentence for Sequence 008 (taking into account Form 1 matters): 3 years imprisonment.
- Indicative sentence for Sequence 009: 1 year imprisonment.
- Aggregate sentence of 3 years imprisonment, commencing 10 September 2018 and expiring 9 September 2021.
- Non-parole period of 18 months, expiring 9 March 2020, with the offender eligible for parole release on that date.
- Special circumstances found.
- Matter referred to the Drug Court (Compulsory Drug Treatment Correctional Centre).
Key Takeaways
- The District Court confirmed that, where multiple sentences are already being served, the commencement date of a new sentence must be calibrated to reflect both appropriate accumulation and the overall principle of totality, rather than simple addition of terms.
- A 25% discount for the utilitarian value of a guilty plea was applied, consistent with established sentencing practice, where the plea was entered in circumstances that provided a genuine saving of court resources.
- Under s 21A of the Crimes (Sentencing Procedure) Act 1999, committing an offence while on parole remains a significant aggravating factor, particularly where the current offending mirrors the nature of the offence for which parole was granted.
- Special circumstances were established by a combination of the offender's youth, his diagnosed drug addiction, and evidence of engagement with rehabilitation programs in custody, justifying a longer parole period relative to the non-parole period.
- Drug addiction was treated as contextually relevant to the offending and to prospects of rehabilitation, but the court was explicit that addiction explains rather than excuses criminal conduct.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 112(2), 117
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A
Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 (governing the treatment of Form 1 offences)
- R v Ponfield (1999) 48 NSWLR 327 (guideline judgment for break and enter offences, noted to be of limited assistance on the facts)