Citation: R v Abdel-Aziz [2018] NSWDC 468
Court: District Court of New South Wales
Date: 12 October 2018
Judge: Neilson DCJ
Background
The offender, a 20-year-old man at the time of the offence, participated with two co-offenders in a break and enter at a residential apartment block in Alexandria in the early hours of 8 May 2017. The group gained entry to the secured building by pressing intercom buttons until an unknown occupant buzzed them in, and the offender himself climbed the exterior of the building to access upper floors and admit his co-offenders via a lift. The three then entered a unit on the eighth floor through a door that had not latched properly.
The occupant of the unit was asleep, having taken a sleeping tablet before bed. The offenders spent approximately two to three minutes inside the unit, taking an iPhone, a leaf blower and accessories, an iPod, a wooden tray containing a wallet, cash, cards and keys, and a United States passport. No damage was caused to the unit or its fittings.
The offender was arrested approximately one week later. He participated in a recorded police interview and made substantial admissions, identifying himself in CCTV images and acknowledging he had seen the victim asleep inside the unit. He entered a guilty plea at the earliest available opportunity in the Local Court. The matter came before Neilson DCJ alongside the sentencing of his two co-offenders, dealt with in R v Pfuhl and Gardiner [2018] NSWDC 467.
Legal Issues
- What was the appropriate sentence for aggravated break, enter and steal where the victim was asleep during the offence?
- How should the sentence reflect the offender's role in a joint criminal enterprise relative to his co-offenders?
- What weight should be given to the offender's age, prior good character, social disadvantage, and mental health (anxiety and depression) as mitigating factors?
- Was the offender entitled to a 25% discount on sentence for an early guilty plea?
- Was an intensive corrections order an appropriate sentencing disposition in the circumstances?
Decision
Neilson DCJ characterised the offence as serious, given the aggravating feature that the offender knew a person was present in the unit. However, his Honour identified several mitigating circumstances: the victim was asleep throughout and was not confronted; the items taken were of modest value and no sentimental significance was identified; no property damage occurred; and the amount of cash stolen was relatively small.
The court assessed the offender's personal circumstances as genuinely mitigating. He was 20 years and three months old at the time of the offence, had prior good character with no relevant criminal history, had experienced social disadvantage, and suffered from anxiety and depression. His Honour accepted the evidence of remorse and contrition, supported by a psychologist's report tendered at the hearing. A 25% discount was applied to the head sentence on account of the early guilty plea.
Parity with the co-offenders was a central consideration. Neilson DCJ compared the offender's position with that of Jake Gardiner and concluded that, taking into account the offender's subjective circumstances, a lesser sentence than that imposed on Gardiner was warranted. The head sentence of two years and eight months was reduced to two years after the guilty plea discount.
His Honour decided that the two-year term of imprisonment should be served by way of an intensive corrections order in the community. The court was satisfied it had sufficient material before it to proceed without commissioning a separate assessment report.
Orders Made
- The offender was convicted of aggravated break, enter and steal (knowing a person was present) contrary to the Crimes Act 1900.
- Sentenced to two years imprisonment, to be served by way of an intensive corrections order, commencing 12 October 2018.
- The offender was directed to report to the Community Corrections Office at Bankstown within 48 hours of release from custody.
- Conditions of the intensive corrections order included:
- No commission of any offence.
- Submission to supervision by a Community Corrections officer.
- Completion of alcohol and other drug rehabilitation and treatment as directed, including any residential rehabilitation program and counselling, treatment and testing.
- Abstention from all alcohol for at least six months.
- No association with co-offenders Jake Gardiner or Stephen Pfuhl.
- Engagement with psychological treatment as recommended in the psychologist's report (exhibit 2).
Key Takeaways
- The District Court confirmed that an offender's knowledge that a person is present within a dwelling is an aggravating circumstance under the Crimes Act 1900, even where that person remains asleep throughout and is never directly confronted.
- A 25% sentencing discount applied where the offender entered a guilty plea at the earliest available opportunity in the Local Court, consistent with established principles under the Crimes (Sentencing Procedure) Act 1991.
- Parity between co-offenders in a joint criminal enterprise is a significant sentencing consideration; the court carefully compared the offender's role and subjective circumstances against those of each co-offender before arriving at a distinct sentence.
- Youth, prior good character, social disadvantage, and diagnosed anxiety and depression were each treated as genuinely mitigating factors capable of reducing the sentence below that imposed on co-offenders with less favourable subjective circumstances.
- An intensive corrections order was available as a sentencing option for a two-year term, and the court may dispense with a formal assessment report where sufficient material is already before it to inform the appropriate conditions.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases:
- R v Pfuhl and Gardiner [2018] NSWDC 467 (co-offender sentencing decision)
- R v Ponfield [1999] NSWCCA 435