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District Court 5 June 2018

R v Carter

[2018] NSWDC 484

DrugsTheft & property
CRIMINAL SENTENCE THEFT OF GOLD JEWELLERY HEROIN ADDICT OTHER SUBJECTIVE MATTERS

Citation: R v Carter [2018] NSWDC 484
Court: District Court of New South Wales
Date: 5 June 2018
Judge: King SC DCJ

Background

The offender, a 44-year-old man, appeared for sentencing on a single charge of breaking into a residential premises at Annandale and stealing gold jewellery valued at approximately $7,725, contrary to s 112(1) of the Crimes Act 1900. The offender had forced entry to a garage using a paving block, retrieved tools from inside, and used those tools to jemmy open a bedroom window before taking the jewellery from a bedside drawer. He fled when an internal alarm sounded.

Police identified the offender through DNA analysis of a bloodstain left on a cupboard door in the garage and a mouth mark left on the bedroom window. He was arrested at Central Railway Station approximately two weeks after the offence. None of the stolen jewellery was ever recovered.

The offender had entered a guilty plea at the earliest opportunity in the Local Court, and the facts were agreed between the parties. He had an extensive criminal history, including prior convictions for similar offences, and a long-standing addiction to heroin that had persisted since he was 18 years of age.

  • What was the appropriate sentence for a mid-range residential break-and-enter offence committed by an offender with significant criminal history and chronic drug dependency?
  • What weight should be given to the offender's troubled background, including childhood abuse, early drug exposure, and the death of his mother?
  • How should the court treat the offender's history of failed rehabilitation attempts in assessing prospects for rehabilitation and specific deterrence?
  • What discount applied for the utilityof the early guilty plea?

Decision

King SC DCJ assessed the objective gravity of the offence as at least mid-range. The offending was premeditated to some degree, involved breach of a victim's home and privacy, caused damage to both the garage and bedroom window, and resulted in the loss of jewellery of significant personal and financial value. Although no Victim Impact Statement was tendered, the court inferred that the effect on the victim would have been substantial.

On subjective matters, the court considered a psychosocial report, a letter from a community rehabilitation organisation, and an earlier psychological report from 2012. The offender had experienced significant childhood hardship, including alleged physical and sexual abuse, early drug and alcohol exposure, and the loss of his mother at age 17. These matters were acknowledged as relevant background, though the court did not treat them as substantially mitigating given the length and persistence of the offending.

The court accepted a 25% discount for the utilityof the early guilty plea, consistent with the principles in Thomson & Houlton. However, the extensive criminal history, repeated failures to complete rehabilitation programs, and candid admission that he could not refuse heroin if it were placed before him all weighed heavily against any significant finding of rehabilitation prospects. The court expressed genuine doubt about the offender's capacity to remain in the community without reoffending.

The court declined a defence request to recommend the offender for the Compulsory Drug Treatment Program, noting that the offender had previously squandered numerous rehabilitation opportunities.

Orders Made

  • The offender was convicted of break and enter a house and steal, contrary to s 112(1) of the Crimes Act 1900.
  • Sentenced to imprisonment with a non-parole period of 3 years and 6 months, and a balance of term of 1 year and 6 months, giving a total sentence of 5 years.
  • Sentence dated from 4 August 2017 (date of entry into custody).
  • First eligible for parole on or about 3 February 2021; total sentence to expire 3 August 2022.
  • The non-parole period was reduced by three months below the statutory ratio to allow an 18-month parole period, to facilitate potential counselling and treatment.

Key Takeaways

  • A residential break-and-enter involving premeditation, damage to the victim's property, theft of items of significant personal and financial value, and no recovery of stolen goods was assessed as falling at least in the mid-range of objective gravity for the purposes of s 112(1) of the Crimes Act 1900.
  • Childhood trauma, long-term drug dependency, and a difficult personal history were treated as relevant background context but did not substantially reduce the sentence where the offending was longstanding and the offender's rehabilitation prospects were poor.
  • The 25% discount for an early guilty plea under Thomson & Houlton applied, reflecting the utilityof the plea entered at the earliest opportunity.
  • Where an offender has repeatedly failed to complete rehabilitation programs over many years, a court may decline to recommend participation in further structured programs and may express significant doubt about prospects for rehabilitation.
  • The District Court adjusted the non-parole period below the statutory ratio, extending the parole period to 18 months, specifically to provide a longer window for any post-release treatment and support.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(1) (break, enter and steal from dwelling house; maximum penalty 14 years' imprisonment)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 5 (threshold for imprisonment)

Cases:
- R v Thomson & Houlton [2000] 49 NSWLR 383 (principles governing discount for utilityof guilty plea)