Citation: R v Stephen Pfuhl; R v Jake Gardiner [2018] NSWDC 467
Court: District Court of New South Wales
Date: 12 October 2018
Judge: Neilson DCJ
Background
Two co-offenders, Pfuhl and Gardiner, appeared for sentencing alongside a third co-offender, Abdel-Aziz, who was dealt with separately. All three had pleaded guilty to charges arising from an incident on the night of 7 to 8 May 2017, when they entered an apartment building at Alexandria and stole a number of items from a unit on the eighth floor.
The offending involved a degree of planning and persistence. The group entered the building by pressing multiple intercom buttons until an unknown occupant buzzed them in, and one of the three climbed the outside of the building to access the internal lift system for the others. On reaching the eighth floor, they found the victim's unit door improperly latched and entered. The victim was asleep inside, having taken half a sleeping tablet shortly before retiring to bed. The stolen items included an iPhone, an iPod, a leaf blower, a wallet containing cash and identity documents, keys, and a passport.
The Crown presented a corrected charge after the original charge was found to be technically deficient. The fresh charge was brought under s 112(2) of the Crimes Act 1900, which covers break, enter and commit a serious indictable offence in circumstances of aggravation, specifically that the offender knew a person was present in the premises. Each offender pleaded guilty to the fresh charge.
Legal Issues
- What was the appropriate sentence for each offender, having regard to the objective seriousness of the offence and each offender's individual circumstances?
- How should the principle of parity apply where co-offenders have materially different personal backgrounds and criminal histories?
- From what date should Pfuhl's sentence commence, given he had been in custody on an unrelated matter?
- Whether there was a real risk of institutionalisation for Gardiner, who had prior custodial sentences, and how that should affect the structure of his sentence.
Decision
Neilson DCJ assessed the offence as falling within the mid-range of objective seriousness. Mitigating features included that the victim was asleep throughout the offending, suffered no physical harm, and the premises sustained no damage. The items stolen were of relatively modest value and held no particular sentimental significance. However, the aggravating feature of the victim's presence was a central element of the charge and could not simply be treated as a neutral consideration.
On parity, the court acknowledged that both offenders were parties to the same joint criminal enterprise but noted their personal circumstances differed significantly. Pfuhl had cooperated with police and made admissions, and his antecedents, while not clean, were less concerning than Gardiner's. Gardiner had a more substantial prior history, including earlier matters dealt with in the same court (R v Gardiner [2016] NSWDC 402 and R v Gardiner [2017] NSWDC 409). The court considered these differences in calibrating the sentences, while remaining alert to the requirement that co-offenders not be treated so differently as to produce an unjust sense of grievance.
Pfuhl had been in custody since 30 August 2017 on an unrelated matter. The court backdated his sentence to commence from that date so that the time already served would count towards the present offence. For Gardiner, defence counsel raised a concern that the prospect of a further custodial term risked entrenching institutionalisation. The court acknowledged this as a relevant consideration but found it did not displace the need for a sentence reflecting the seriousness of the offending. Special circumstances were found for both offenders, extending the balance of sentence beyond the standard ratio to allow for adequate supervision on parole.
Orders Made
- Pfuhl: Convicted. Total sentence of 2 years and 3 months imprisonment. Non-parole period of 1 year and 3 months, commencing 30 August 2017 and expiring 29 November 2018. Balance of sentence of 1 year, expiring 29 November 2019. Special circumstances found.
- Gardiner: Convicted. Total sentence of 2 years and 3 months imprisonment. Non-parole period of 1 year and 2 months, commencing 16 July 2018 and expiring 15 September 2019. Balance of sentence of 1 year and 1 month, expiring 15 October 2020. Special circumstances found.
Key Takeaways
- Under s 112(2) of the Crimes Act 1900, an offender's knowledge that a person was present in the premises is both an essential element of the aggravated offence and a factor bearing on the objective seriousness of the conduct at sentencing.
- A "technical breaking" sufficient to establish the breaking element of the offence can be constituted by pushing open an unlocked but closed door, or by opening an unlocked internal door without permission.
- The parity principle requires that co-offenders in a joint criminal enterprise receive sentences that are broadly consistent, but does not require identical outcomes where their personal circumstances, criminal histories, and cooperation with authorities differ materially.
- Where a co-offender has been held in custody on an unrelated charge before sentence is passed on the present offence, the sentencing court may backdate the commencement of the sentence so that pre-sentence custody is properly accounted for.
- A risk of institutionalisation is a recognised consideration in structuring a sentence, but the District Court here found it did not override the objective requirements of the offence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases:
- R v Ponfield [1999] NSWCCA 435
- R v Gardiner [2016] NSWDC 402
- R v Gardiner [2017] NSWDC 409