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District Court 22 May 2019

R v White

[2019] NSWDC 298

Theft & property

Citation: R v White [2019] NSWDC 298
Court: District Court of New South Wales
Date: 22 May 2019
Judge(s): Bennett SC DCJ

Background

The offender, a 48-year-old man, appeared for sentencing on two principal offences of break, enter and commit a serious indictable offence (larceny) and break and enter with intent to commit a serious indictable offence, contrary to the Crimes Act 1900. The offending occurred across several commercial premises in Seven Hills in April 2018. The offender had pleaded guilty in the Local Court and was committed for sentence to the District Court.

At the time of the offending, the offender was subject to parole for prior offences of a similar nature. He had been granted parole on 31 March 2017 and was arrested on 3 May 2018, after approximately 14 months at liberty. His parole was subsequently revoked, and he served the balance of his earlier sentence from 3 May 2018 until 18 February 2019.

The offender carried an extensive criminal history, and each principal offence was accompanied by a Form 1 document listing additional related offences to be taken into account during sentencing without separate punishment.

  • Whether a 25% guilty plea discount was appropriate, and how it should be applied alongside findings of remorse and poor rehabilitation prospects.
  • How the commencement date of the new sentence should be fixed, given that a period of pre-sentence custody overlapped with the balance of a revoked parole sentence.
  • How the Form 1 offences should affect the sentences imposed for the principal offences.
  • What weight to give the offender's criminal antecedents and the fact that he offended while on parole, in the context of the principles from McNaughton.
  • How to balance mitigating subjective factors, including partial progress toward rehabilitation, against the need for personal deterrence and community protection.

Decision

Guilty plea discount. The court applied a 25% discount to each sentence, consistent with the approach endorsed in Borkowski [2009] NSWCCA 102. The court accepted that the offender had demonstrated genuine contrition, remorse, and some insight into his offending. However, the court found his prospects for rehabilitation to be poor, which tempered the overall assessment of subjective factors.

Commencement of sentence. The central question was whether the aggregate sentence should commence from 3 May 2018, the date of arrest and parole revocation, or from a later date. The court applied the principles in Callaghan v R [2006] NSWCCA 58, particularly the observation that sentencing a person as though they would never have received parole again can produce an unfair result. Weighing the offender's meaningful period at liberty on parole against the fact that he had offended while subject to conditional liberty, the court determined that 3 May 2018 was the appropriate commencement date.

Form 1 offences. Consistent with the principles from Attorney General's Application (No. 1 of 2002) [2002] NSWCCA 518, the Form 1 offences increased the sentences that would otherwise have been imposed for the principal offences alone. The court acknowledged that the offender gained an advantage by avoiding separate punishment for each additional offence, but held that the Form 1 matters warranted greater weight on personal deterrence and community retribution.

Antecedents and parole status. Following McNaughton [2006] NSWCCA 242, the court treated the offender's prior record and parole status as aggravating factors within a limited scope. These factors informed the degree of leniency to be withheld and the weight given to personal deterrence, but did not independently aggravate the objective seriousness of the offending.

Orders Made

  • Aggregate sentence of 6 years imprisonment, commencing 3 May 2018, with a non-parole period of 3 years and 6 months.
  • Parole eligibility date: 2 November 2021.
  • Overall sentence expiry: 2 May 2024.
  • Referral to the Drug Court for assessment of eligibility to participate in the drug program at Parklea.
  • Exhibits to remain on file for 28 days or such longer period as the parties require.
  • Form 1 documents certified in each case.

Key Takeaways

  • A 25% guilty plea discount applies where an offender pleads guilty at an early stage and maintains that plea, even where subjective factors such as poor rehabilitation prospects limit other mitigating weight: the utility of the plea is assessed separately.
  • Under Callaghan v R, a sentencing court retains a discretion to backdate a new sentence to the date of parole revocation where doing so avoids an unfair assumption that the offender would never again have received parole on the earlier sentence.
  • Form 1 offences do not result in separate punishment, but under Attorney General's Application (No. 1 of 2002), they must increase the sentence for the principal offence to which they are attached, with added weight given to personal deterrence and retribution.
  • The District Court confirmed, following McNaughton, that a prior criminal record and offending on parole are aggravating factors that limit leniency and affect the weight given to personal deterrence, but they do not increase the objective seriousness of the current offending itself.
  • Where the custodial component of a sentence exceeds 18 months, referral to the Drug Court for program assessment remains available on application by the offender.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 112(1)(a), 113(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 37; Part 4 Div 1A

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999, No. 1 of 2002 [2002] NSWCCA 518
- Borkowski [2009] NSWCCA 102
- Bugmy v The Queen [2013] HCA 37
- Callaghan v R [2006] NSWCCA 58
- Fernando (1992) 76 A Crim R 58
- McNaughton [2006] NSWCCA 242