Citation: R v Tighe [2019] NSWDC 230
Court: District Court of NSW
Date: 22 February 2019
Judge(s): Sweeney DCJ
Background
The offender pleaded guilty in the Local Court to four offences: two counts of break, enter and steal, one count of entering a building with intent to steal (having been previously convicted of break, enter and steal), and one count of entering a building with intent to steal. He also asked the court to take three further offences into account on a Form 1, being possession of property reasonably suspected of being stolen, giving false information to a pawnbroker, and disposing of stolen property.
The offending occurred over a period of just under one week in January 2018, predominantly in the Drummoyne and Summer Hill areas of Sydney. The offender broke into residential premises, stealing items including an iPhone, jewellery worth $5,000, cash, and other property. At the time of the offending, he was on parole for earlier break, enter and steal offences.
The sentencing proceedings proceeded on agreed facts and were supported by a psychological report prepared by Ms Megan Godbee, which addressed the offender's significant history of social disadvantage, childhood trauma, substance abuse, and institutionalisation.
Legal Issues
- What was the appropriate objective seriousness of each offence?
- Did the offender's childhood deprivation enliven the mitigating principles established in Bugmy v The Queen [2013] HCA 37?
- Did the offender's substantial treatment needs constitute special circumstances justifying a reduction in the non-parole period below the statutory ratio?
- From what date should the sentence commence, given that the offender's parole was revoked partly because of the present offences?
- What aggregate sentence was appropriate, taking into account partial accumulation across offences involving different victims?
Decision
Objective seriousness
The court assessed all four principal offences and all Form 1 offences as being of low objective seriousness (at [16]-[21]). The break and enter offences involved no evidence of planning, were unsophisticated, and in some instances resulted in no property being taken. The stolen iPhone from the first offence was recovered. The offending as a whole occurred over a short period and was described by the court as driven by the offender's desperation for drugs, which distinguished him from an offender acting with a different motivation (at [22]).
Aggravating factor: offending on parole
All offences were committed while the offender was on parole for break, enter and steal offences. The court treated this as an aggravating factor to be taken into account on sentence, while noting that it does not increase the objective seriousness of the offences themselves (at [23]).
Bugmy principles and moral culpability
The court rejected the Crown's submission that the offender's childhood deprivation did not enliven Bugmy. The court found that his profound social disadvantage, exposure to family violence, experience of physical and sexual abuse as a child, and the maladaptive response of commencing drug use at a very early age all reduced his moral culpability for the offending (at [51]). The drug use began in adolescence and had continued in a persistent cycle, punctuated by periods of abstinence and relapse, despite participation in rehabilitation programs.
Special circumstances and sentencing structure
The court found that the offender's substantial treatment needs constituted special circumstances warranting a significant reduction in the non-parole period from the statutory ratio (at [54]). His depression, diagnosed since his early twenties, also made his time in custody more difficult. The court accepted his remorse and victim empathy as genuine (at [53]). The sentence was commenced on 15 April 2018, three months after the date of arrest, rather than at the end of the balance of parole, because the parole revocation was partly attributable to the present offences (at [58]). The court applied a 25% discount for guilty pleas entered in the Local Court (at [60]).
Orders Made
- Aggregate sentence of three years and six months imprisonment imposed.
- Non-parole period of 18 months imprisonment, commencing 15 April 2018 and expiring 14 October 2019.
- Additional term of two years imprisonment.
Key Takeaways
- The District Court confirmed that committing offences while on parole is an aggravating factor to be taken into account on sentence, but does not elevate the objective seriousness of the individual offences (at [23]).
- Where an offender's childhood deprivation is sufficiently established, the Bugmy principles apply to reduce moral culpability even when the Crown contests their application; the court assessed the offender's history of trauma, family violence, and early drug use as engaging those principles on the facts here (at [51]).
- Substantial and multiple rehabilitative needs, including drug and alcohol treatment, trauma therapy, and stable accommodation support, can constitute special circumstances justifying a significant departure from the standard non-parole period ratio (at [54]).
- A sentencing court has a discretion as to the commencement date of a fresh sentence where a prior parole was revoked partly because of the new offending; here the court selected a date that was neither the date of arrest nor the end of the balance of parole, reflecting the partial relationship between the two matters (at [58]).
- Drug-driven motivation for property offending, particularly where rooted in longstanding addiction commenced in adolescence, can mitigate moral culpability by distinguishing the offender from those who commit identical offences with different purposes (at [22]).
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- Bugmy v The Queen [2013] HCA 37