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District Court 26 October 2018

R v Lincoln (No 2)

[2018] NSWDC 356

Fraud & dishonestyTheft & property
CRIMINAL LAW SENTENCE FORM 1 FORMERLY ON S11 REMAND GENUINE EFFORTS MADE AT REHABILITATION BREAK AND ENTER

Citation: R v Lincoln (No 2) [2018] NSWDC 356
Court: District Court of New South Wales
Date: 26 October 2018
Judge(s): Berman SC DCJ

Background

The offender had first appeared before the District Court for sentencing in March 2018, at which point the matter was adjourned under a section 11 remand to allow him to enter residential rehabilitation. The court had previously noted his childhood of extreme hardship and disadvantage, and considered whether a period of rehabilitation might influence the ultimate sentence.

Between March and October 2018, the offender's rehabilitation attempts were unsuccessful. He was asked to leave a residential facility after forming a prohibited relationship and using drugs while there. He also overdosed on heroin on two occasions and committed at least one further offence of goods in custody.

The offender returned for sentencing on two charges arising from events in the early hours of 2 January 2017. The charges were aggravated break, enter and steal (with a person present on the premises at the time) and dishonestly obtaining property by deception (through use of a stolen Visa debit card the following day). An unknown male accompanied the offender during the break-in, and a vehicle was also taken from the premises using stolen keys.

  • What sentence was appropriate given the offender's failed rehabilitation attempts, genuine desire for rehabilitation, and lengthy criminal history driven by longstanding drug addiction?
  • How should the Bugmy principles apply to an offender raised in circumstances of extreme disadvantage and criminal influence?
  • Whether special circumstances existed justifying a non-parole period shorter than the statutory proportion of the head sentence.

Decision

His Honour accepted that the offender's desire to rehabilitate himself was genuine. Despite the failed attempt, the court noted that the path to rehabilitation for a person with the offender's background and entrenched drug addiction is exceptionally difficult, and that the setbacks were unfortunately common rather than indicative of bad faith.

The court applied the principles from Bugmy v The Queen, recognising that the offender's upbringing, marked by criminal influences and profound social disadvantage, made it materially harder for him to choose prosocial behaviour than it would be for a person raised in different circumstances. His Honour noted, however, that this background does not excuse offending, pointing to the offender's brother as an example of someone from the same environment who had not followed the same path.

The offending itself was treated as serious. The aggravating circumstance that a person was present in the premises at the time of the break-in was given particular weight. His Honour noted it was fortunate that the occupant remained unaware of the offenders' presence. The offender's lengthy criminal history, consistent with his drug addiction, was also taken into account.

A finding of special circumstances was made in the offender's favour, given the genuine (if unrealised) rehabilitation efforts and the prospect that, with support and as the offender aged, he might eventually overcome his addiction.

Orders Made

  • Aggregate head sentence of four years imprisonment.
  • Non-parole period of two years, commencing 26 June 2017 and expiring 25 June 2019 (the earliest date of parole eligibility).
  • Component sentences (had an aggregate not been imposed): four years with a two-year non-parole period for aggravated break, enter and steal; nine months for dishonestly obtaining property by deception.
  • Form 1 offences (additional deception charges) taken into account.

Key Takeaways

  • The District Court confirmed that a genuine but unsuccessful attempt at rehabilitation remains a relevant mitigating consideration at sentencing, even where the offender has relapsed and committed further offences during the adjournment period.
  • Under the Bugmy principles, a sentencing court must give sustained weight to childhood deprivation and entrenched disadvantage, recognising that such circumstances make it genuinely harder to avoid criminal behaviour, without treating that background as an excuse for offending.
  • A finding of special circumstances can be warranted where an offender demonstrates a genuine desire for rehabilitation and there remains a realistic, if uncertain, prospect of future success, particularly where structured support such as residential rehabilitation may assist.
  • The aggravating circumstance of a person being present during a break-in attracted significant weight, even where the occupant was unaware of the offenders' presence and no confrontation occurred.
  • Aggregate sentencing was applied across the two principal charges, with the component sentences recorded to reflect the relative seriousness of each offence.

Legislation and Cases Referenced

Cases:
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- R v Lincoln [2018] NSWDC 97 (the earlier sentencing remarks in the same matter)

Legislation:
- Section 11 of the relevant sentencing legislation (remand for rehabilitation purposes; specific Act not identified in the judgment)