Citation: R v Schwarz [2018] NSWDC 510
Court: District Court of New South Wales
Date: 19 July 2018
Judge(s): Tupman DCJ
Background
The offender pleaded guilty in the Local Court to three charges of entering a dwelling with intent to steal, each aggravated by his knowledge that persons were present inside the premises. The offences occurred across three residential units in Alexandria and Waterloo between February 2017 and January 2018. In each instance, the offender gained entry at night through open or partially open balcony doors while the occupants were asleep.
The stolen items included backpacks, credit cards, identification documents, car keys, and personal belongings. The credit cards were used fraudulently at service stations and convenience stores shortly after each break-in. The fraudulent use of the credit cards formed the basis of additional offences listed on Form 1 documents (a mechanism under NSW law allowing related charges to be taken into account at sentencing without imposing separate penalties).
The third offence was committed while the offender was on bail for the first two. He was arrested on 26 January 2018, provided police with the stolen car keys and wallet, and had been held in custody from that date.
Legal Issues
- What aggregate sentence was appropriate for three aggravated dwelling entries, with associated Form 1 offences, given the objective seriousness of the conduct?
- How should the offender's Indigenous background, childhood trauma, homelessness, drug addiction, and epilepsy affect the sentencing assessment?
- Whether special circumstances existed to justify a longer-than-standard parole period relative to the non-parole period.
- How to deal with the related driving offence (driving unlicensed) sent to the District Court under s 166 of the Criminal Procedure Act 1986.
Decision
Tupman DCJ found all three substantive offences to be objectively serious. The maximum penalties of 14 years (for ss 111(2) offences) and 20 years with a five-year standard non-parole period (for the s 112(2) offence) reflected that gravity. The third offence was further aggravated because it was committed on bail for the first two. Although the value of goods taken was not high in the first two offences, the violation of the victims' privacy and the subsequent fraudulent use of credit cards caused real and lasting inconvenience.
The court accepted that the offender's drug addiction was a significant catalyst for the offending and considered his Aboriginality in accordance with established principles from R v Ponfield (1999) 48 NSWLR 327. His background included childhood abuse, early homelessness, few social supports, and a lengthy prior record with six separate periods of imprisonment. The court treated these as relevant to moral culpability, though they did not eliminate the need for a custodial sentence.
The offender received a 25 per cent discount on sentence for his early pleas of guilty. The court found special circumstances, warranting a departure from the standard ratio between non-parole period and overall term, because the offender would require an extended period of supervised parole to address his addiction and support rehabilitation prospects described as guarded.
On the driving offence, the court recorded a conviction under s 10A of the Crimes (Sentencing Procedure) Act 1999 with no further penalty. The court declined to impose a disqualification period, noting that adding a disqualification commencing upon parole release would be unnecessarily punitive and could impede the offender's efforts to find accommodation or employment.
Orders Made
- Conviction recorded for all offences.
- Aggregate sentence imposed under s 53A of the Crimes (Sentencing Procedure) Act 1999: non-parole period of 2 years commencing 26 January 2018, expiring 25 January 2020; parole period of 18 months commencing 26 January 2020, expiring 25 July 2021. Total term: 3 years and 6 months.
- Indicative sentence for the 11 February 2017 offence: 18 months.
- Indicative sentence for the 11 March 2017 offence: 18 months.
- Indicative sentence for the 22 to 23 January 2018 offence: 2 years and 3 months (indicative non-parole period of 15 months).
- Form 1 offences taken into account for all three files.
- Drive unlicensed: convicted pursuant to s 10A, no further penalty, no disqualification period imposed.
- Release to parole recommended at expiration of the non-parole period.
Key Takeaways
- An offender's Aboriginal background, history of trauma, childhood abuse, and homelessness are relevant sentencing considerations under R v Ponfield, informing the assessment of moral culpability even where a substantial custodial sentence remains necessary.
- Committing a further aggravated dwelling entry while on bail for two earlier offences of the same character is a distinct aggravating factor that increases the objective seriousness of the later offence.
- Special circumstances can be established where an offender requires a longer period of supervised parole to address entrenched drug addiction and achieve rehabilitation, permitting departure from the standard non-parole period ratio.
- Under s 10A of the Crimes (Sentencing Procedure) Act 1999, a court may record a conviction for a minor related offence without imposing any further penalty, and may decline to impose a disqualification period where doing so would be unnecessarily punitive in the context of an imminent parole release.
- Fraudulent use of stolen credit cards taken during residential burglaries, dealt with as Form 1 offences, contributes to the overall sentencing assessment even where no separate penalty is imposed for those charges.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 111(2), 112(2), 154A, 192E(1)(a)-(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 53A
- Criminal Procedure Act 1986 (NSW), s 166
- Road Transport Act 2013 (NSW), s 53(1)(a)
Cases
- R v Ponfield (1999) 48 NSWLR 327