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District Court 17 April 2019

R v Cook

[2019] NSWDC 209

Theft & property

Citation: R v Cook [2019] NSWDC 209
Court: District Court of New South Wales
Date: 17 April 2019
Judge: Buscombe DCJ

Background

The offender, a 44-year-old man with an extensive criminal history dating back to age 11, pleaded guilty to five counts of breaking and entering commercial premises and stealing. The offences were committed across Strathfield and Penrith over a period of approximately one week in late January 2018. Targets included retail shops, professional offices, and a charitable organisation.

The offender gained entry to the various premises by smashing glass panels, jimmying doors, or reaching through broken glass to unlock doors from the inside. Items stolen included cash, laptops, mobile phones, tablets, wallets, and keys. A number of additional offences, including further break-and-enter and larceny counts, were brought before the court on a Form 1 (a mechanism under NSW sentencing law by which an offender acknowledges guilt for additional offences, which the court takes into account when imposing the primary sentence without recording separate convictions).

The offender was identified through CCTV footage and fingerprint evidence. Police arrested him on 30 January 2018 when he was found hiding in a wardrobe at his residence.

  • How should the objective seriousness of each break-and-enter offence be assessed, having regard to the guideline judgment in R v Ponfield?
  • What weight should be given to the offender's substantial criminal history, his background, and any available mitigating factors in determining the appropriate subjective case?
  • What aggregate sentence, including a non-parole period, was appropriate across the five principal offences?
  • How should the Form 1 offences affect the sentence imposed on the principal Penrith offence?

Decision

Buscombe DCJ assessed the objective seriousness of each of the five offences as below the notional mid-range but not at the very bottom of the range. The premises were all commercial rather than residential, the damage caused was relatively limited in each instance, and the value of goods stolen was modest. The court applied the framework from R v Ponfield and confined its assessment to the objective features of each offence.

Turning to the subjective case, the court acknowledged the offender's difficult background and gave consideration to the principles in Bugmy v The Queen, which directs sentencing courts to account for the effects of deprivation and disadvantage on an offender's moral culpability. However, the offender's extensive criminal record, including prior convictions for similar offending in both New South Wales and Queensland, significantly limited the leniency available to him.

The court identified specific and general deterrence as significant sentencing considerations. Break-and-enter offences were described as prevalent in the community, causing substantial distress to victims and broader costs through increases in insurance premiums. The need to reflect the discrete nature of each offence and the existence of multiple victims warranted some accumulation of sentences rather than full concurrency.

An aggregate sentence was imposed under the Crimes (Sentencing Procedure) Act 1999, with indicative sentences recorded for each individual offence. The aggregate term reflected the totality of the offending while remaining proportionate to the overall criminality involved.

Orders Made

  • The offender was convicted of all five offences to which he pleaded guilty.
  • An aggregate sentence of five years imprisonment was imposed.
  • A non-parole period of three years and four months was set.
  • The sentence commences 30 January 2019 and expires 29 January 2024.
  • The non-parole period expires 29 May 2022, at which point the State Parole Authority will determine release.

Indicative sentences recorded:
- Churchill Avenue, Strathfield: two years and six months imprisonment
- 5/429 High Street, Penrith: three years imprisonment
- 12/474 High Street, Penrith: three years imprisonment
- 1/374 High Street, Penrith: two years and six months imprisonment
- 3/374 High Street, Penrith: two years and six months imprisonment

Key Takeaways

  • The District Court assessed all five commercial break-and-enter offences as below a notional mid-range of objective seriousness, with the absence of residential premises as a relevant distinguishing feature.
  • Under the Bugmy principles, an offender's background and disadvantage remain relevant to moral culpability even where a substantial criminal history limits the practical weight given to those factors.
  • A criminal history consisting of similar prior offending, extending from juvenile years through multiple adult custodial sentences, significantly reduces any entitlement to leniency at sentencing.
  • Where multiple offences involve discrete acts of criminality and separate victims, some accumulation of individual terms within an aggregate sentence is warranted to reflect that totality.
  • Form 1 offences that themselves include break-and-enter conduct will have a meaningful upward impact on the sentence imposed for the principal offence to which they are attached.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(1) (break and enter with intent to commit a serious indictable offence, maximum 14 years)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A (objects of sentencing)

Cases
- Bugmy v The Queen (2013) 249 CLR 571 (High Court: relevance of background deprivation to moral culpability)
- R v Ponfield (1999) 48 NSWLR 32 (NSW Court of Criminal Appeal: guideline judgment for break-and-enter offences, including assessment of objective seriousness)