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District Court 29 March 2018

R v Lincoln

[2018] NSWDC 97

Fraud & dishonestyTheft & property
CRIMINAL LAW SENTENCE FORM 1 BREAK AND ENTER IN COMPANY DISHONESTLY OBTAIN MONEY BY DECEPTION

Citation: R v Lincoln [2018] NSWDC 97
Court: District Court of New South Wales
Date: 29 March 2018
Judge: Berman SC DCJ

Background

The offender, a 37-year-old man with an extensive criminal history, appeared for sentencing on a charge of break and enter in company with knowledge that persons were present on the premises. He also faced a charge of dishonestly obtaining property by deception, arising from his use of credit cards stolen during the break-in. Both principal offences carried associated Form 1 matters: one relating to a stolen motor vehicle taken from the same premises, and the other involving further dishonest obtaining offences through use of the stolen credit cards.

The offender had been drug-free following his most recent release from custody, but sustained injuries after being run over. Prescribed medication prompted a relapse into illicit drug and alcohol use. He reconnected with a former associate through social media and, while intoxicated, committed the offences with that person.

Psychological evidence placed his background in context. He experienced severe childhood disadvantage, including parental drug addiction, criminality, domestic violence, neglect, and periods in state care. He had spent significant portions of his adult life in custody and described knowing only one person without a criminal record.

  • What sentence was appropriate, having regard to the objective gravity of the offences and the offender's personal circumstances?
  • Whether the sentencing proceedings should be adjourned to allow the offender to access an available placement at a residential rehabilitation facility.
  • Whether a further adjournment under section 11 of the Crimes (Sentencing Procedure) Act was appropriate to permit participation in residential rehabilitation before final sentence.

Decision

Berman SC DCJ acknowledged the serious nature of the principal offence of break and enter in company, which carries a maximum penalty of 20 years imprisonment and a standard non-parole period of five years. The court accepted that the victims suffered not only financial loss but also the psychological harm of having their privacy and security violated.

The court gave significant weight to the offender's background of extreme hardship and disadvantage, as documented in the psychological report. However, his Honour noted that background alone did not excuse the offending, and that any final sentence would need to reflect the objective gravity of the conduct. The court acknowledged that even a successful rehabilitation outcome might not avoid a further period of custody.

His Honour identified a residential rehabilitation placement as a genuine opportunity, both for the offender and for the community. The offender had been accepted onto a waiting list, with a placement expected to become available in approximately four months. The court found that facilitating access to rehabilitation served the broader community interest by addressing the underlying causes of the offender's recidivism.

The matter was not finally sentenced at this hearing. Instead, the court adjourned proceedings to allow the situation to develop, with the sentencing to proceed, be adjourned under section 11, or be further delayed, depending on the status of the rehabilitation placement at the return date.

Orders Made

  • Sentencing proceedings adjourned to 27 July 2018 at 2:00 pm.
  • On that date, the court reserved three options: adjourn under section 11 of the Crimes (Sentencing Procedure) Act to permit residential rehabilitation; proceed to final sentence; or adjourn further if entry into rehabilitation was expected within a short additional period.
  • A drug and alcohol assessment ordered, including assessment of the offender's suitability for residential rehabilitation.

Key Takeaways

  • The District Court exercised its discretion under the Crimes (Sentencing Procedure) Act to adjourn sentencing proceedings where a residential rehabilitation placement was imminent, treating access to rehabilitation as a relevant consideration in the public interest.
  • A finding that rehabilitation benefits the community, not just the offender, can support procedural flexibility in sentencing, even where the objective gravity of the offending remains significant.
  • Severe childhood disadvantage, parental criminality, and the absence of positive role models were accepted as relevant background factors, though the court made clear they do not displace the requirement to reflect objective seriousness in any final sentence.
  • Under section 11 of the Crimes (Sentencing Procedure) Act, a court may adjourn sentencing to allow an offender to undertake rehabilitation, with final sentencing deferred until the outcome of that process is known.
  • The existence of a supportive family member with no criminal history was noted as a positive factor in the offender's circumstances, illustrating that background disadvantage does not inevitably produce the same outcome for all members of a family.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act (NSW), section 11

Cases:
- No cases were cited in the judgment.