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District Court 17 April 2019

R v Warren

[2019] NSWDC 226

Theft & property

Citation: R v Warren [2019] NSWDC 226
Court: District Court of New South Wales
Date: 17 April 2019
Judge: Buscombe DCJ

Background

The offender pleaded guilty to nine break and enter offences committed across western Sydney between 6 February 2018 and 3 March 2018. The offences spanned multiple suburbs including Bligh Park, Blaxland, McGraths Hill, Kellyville, Emu Plains, Leonay, and Prairiewood. Three offences involved breaking and entering with intent to steal, while the remaining six involved actual theft of property from residential premises.

The offending was conducted with a co-offender, Ms Evans, who hired a vehicle used to transport the offender to and from each location. The co-offender typically remained in the car while the offender forced entry into secured homes, in most cases while occupants were away. Stolen property included cash, jewellery, electronics, and other personal items, with one victim losing a guitar and jewellery valued at over $8,000. A further seven offences, including four break and enter and steal offences, two break and enter with intent to steal, and one offence of possessing a police uniform, were placed on a Form 1 to be taken into account on sentencing.

The offender appeared before Buscombe DCJ in the District Court for sentencing following his earlier guilty pleas in the Local Court.

  • What aggregate sentence was appropriate for nine break and enter offences, having regard to the totality principle and the principle against double punishment
  • How much weight to give mitigating factors, including the guilty pleas, the offender's background, and any other personal circumstances
  • Whether the offender should be referred to the Drug Court for assessment for a compulsory drug treatment order

Decision

Buscombe DCJ noted the serious nature of residential break and enter offending, emphasising its significant impact on victims, communities, and insurance costs. The court observed that both general and specific deterrence required substantial sentences, and that full-time custody was the only appropriate outcome.

The court recorded indicative sentences for each of the nine offences individually before imposing an aggregate sentence. Indicative sentences ranged from 12 months (for the break and enter with intent offences where nothing was stolen) to four years (for the sequence 21 offence, which carried the additional weight of the Form 1 matters). The sentence for the sequence 21 offence was elevated to reflect the seven Form 1 offences, consistent with the guideline judgment on that procedure.

The court applied the principles in Bugmy v The Queen, R v Ponfield, and TL v R in considering the offender's background and the structuring of the aggregate sentence. The aggregate term was set at five years and three months, with a non-parole period of three years and six months, commencing from the date of arrest on 3 March 2018.

Orders Made

  • The offender was convicted of all nine offences to which he pleaded guilty.
  • An aggregate sentence of five years and three months' imprisonment was imposed, with a non-parole period of three years and six months.
  • The sentence commenced on 3 March 2018, with the earliest release to parole on 2 September 2021.
  • Pursuant to section 18B of the Drug Court Act, the offender was referred to the Drug Court to determine whether a compulsory drug treatment order should be made.

Key Takeaways

  • Residential break and enter offending attracts full-time custody where there is a pattern of deliberate, serial offending against secured private homes across a short period.
  • Under the Form 1 procedure, additional offences taken into account on sentencing increase the penalty on the specific offence to which they attach, rather than generating separate sentences; the court applied the relevant guideline judgment accordingly.
  • An aggregate sentencing approach requires the court to record indicative sentences for each individual offence before arriving at a combined term that reflects the totality of the criminality without resulting in a crushing sentence.
  • Sufficient weight to the guilty pleas and personal circumstances was incorporated into the aggregate, though the nature and volume of the offending constrained the overall reduction available.
  • Referral to the Drug Court under section 18B of the Drug Court Act remained available even where a substantial custodial sentence was imposed, reflecting the court's capacity to address underlying issues contributing to the offending.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 112(1) and 113(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Drug Court Act 1998 (NSW), s 18B

Cases
- Bugmy v The Queen (2013) 249 CLR 571
- R v Ponfield (1999) 48 NSWLR 32
- TL v R [2017] NSWCCA 308