AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 16 February 2018

R v Walton

[2018] NSWDC 259

Other
CRIMINAL LAW SENTENCE FOLLOWING S11 REMAND IN COMPANY STEALING OFFENDER SUFFERS FROM A MENTAL ILLNESS

Citation: R v Walton [2018] NSWDC 259
Court: District Court of New South Wales
Date: 16 February 2018
Judge: Berman SC DCJ

Background

The offender was sentenced for aggravated break and enter and committing a serious indictable offence in company. He and another man broke into a garage attached to residential premises and stole tools. Police detected them during the offence and recovered all stolen property. No damage was done to the garage and the victims suffered no financial loss.

The offender had previously appeared before the same judge, who placed him on a section 11 remand bond in December 2016 rather than imposing immediate imprisonment. That bond gave the offender an opportunity to engage with treatment programs before a final sentence was determined.

The offender had a deeply troubled background. His mother died during his childhood and he believed his father was responsible. His father had limited parenting capacity, his grandparents who subsequently cared for him also died, and his father has since died as well. The offender was diagnosed with a mental illness and had a history of drug use.

  • Whether a further period of actual imprisonment was necessary, given the offender had already served three months and ten days in pre-sentence custody.
  • What weight to give the offender's mental illness, personal history, and rehabilitation efforts in determining the appropriate sentence.
  • Whether the standard non-parole period of five years was relevant to the sentencing exercise, and what reasons existed for departing from it.
  • Whether a suspended sentence of imprisonment was an appropriate outcome.

Decision

Berman SC DCJ described the objective seriousness of the offence as well below the midpoint of the range that would ordinarily attract the standard non-parole period. The only circumstance of aggravation was that the offence was committed in company, which is among the less serious of available aggravating factors. The serious indictable offence committed was stealing, also among the less serious such offences.

The judge found that the offender's mental illness made it inappropriate to impose a sentence with a large component of general deterrence. Although the offender had not fully complied with all expectations during the section 11 remand period and continued to use drugs, he had not reoffended. More recently, he had engaged with St John of God Hospital in Burwood, where a three-week inpatient stay was confirmed as positive by the hospital directly. He had also begun attending Odyssey House for a non-residential drug treatment program and was cooperating well with Community Corrections.

Taking into account the time already served in custody, the offender's genuine engagement with mental health and drug treatment, and the relatively low objective gravity of the offence, the court was satisfied that a further period of actual imprisonment was not necessary. The guilty plea, though entered late, was treated as one of several factors informing the decision to impose a different form of sentence.

The court imposed a 12-month term of imprisonment, suspended on condition that the offender enter into a good behaviour bond for the same period. The judge noted candidly that the sentence had been generous, and warned the offender that any failure to comply would result in the matter returning before the same judge, with a real risk of imprisonment.

Orders Made

  • The offender sentenced to 12 months imprisonment.
  • Execution of the sentence suspended on condition the offender enter into a good behaviour bond for 12 months.
  • Bond conditions: no further offences; supervision by the Probation and Parole Service (with a recommendation that the existing supervising officer continue if possible); compliance with all Community Corrections requirements, including entry into a long-term residential dual diagnosis rehabilitation facility if required; and ongoing engagement with drug intervention programs as recommended.

Key Takeaways

  • The District Court confirmed that a diagnosed mental illness is a relevant factor reducing the weight given to general deterrence in sentencing, consistent with established principle.
  • Where an offender has served pre-sentence custody and has demonstrated genuine, verifiable engagement with rehabilitation programs, a court may be satisfied that further actual imprisonment is unnecessary even for an offence carrying a maximum of 20 years and a five-year standard non-parole period.
  • The objective gravity of an aggravated break and enter offence is assessed by reference to the specific circumstances of aggravation and the nature of the serious indictable offence committed. Being in company and stealing, without more, placed this offending well below the mid-range.
  • A section 11 remand can serve a meaningful function: the court here used partial compliance during the remand period, rather than full compliance, as sufficient basis for a non-custodial outcome when weighed alongside other mitigating factors.
  • Suspended sentences remained an available sentencing option in this jurisdiction at the time of this decision, with conditions capable of requiring residential rehabilitation and ongoing drug treatment.

Legislation and Cases Referenced

Legislation:
- Section 11 of the relevant sentencing legislation (the basis for the initial remand bond, allowing the court to defer sentencing to assess rehabilitation prospects)

Cases cited: None cited in the provided text.