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District Court 31 May 2019

R v Weir

[2019] NSWDC 301

Theft & propertyDomestic & family violence

Citation: R v Weir [2019] NSWDC 301
Court: District Court of New South Wales
Date: 31 May 2019
Judge: Grant DCJ

Background

The offender pleaded guilty to aggravated break and enter and commit a serious indictable offence (larceny), contrary to s 112(2) of the Crimes Act 1900. The offence carried a maximum penalty of 20 years' imprisonment and a standard non-parole period of five years.

The offence occurred in the early morning of 28 January 2018. The offender forced open a locked bathroom window of his former girlfriend's unit and entered her bedroom while she slept. He took her purse, containing bank cards and approximately $100 in cash, and subsequently used a bank card at a nearby ATM. A domestic apprehended violence order was in force at the time. The offender was detected by the victim's younger sister and left immediately.

The offender had been in custody since 3 February 2018. He entered a plea of not guilty at arraignment in July 2018, with the matter listed for trial in March 2019. He ultimately entered a guilty plea to an amended indictment on 15 March 2019, three days before the scheduled trial.

  • What discount should be applied to reflect the guilty plea and its timing?
  • Where on the spectrum of objective seriousness did this break and enter offence fall?
  • What weight should be given to the offender's subjective circumstances, criminal history, and prospects of rehabilitation?
  • Whether special circumstances existed to justify a non-parole period shorter than the statutory proportion?
  • What sentence and conditions were appropriate for a related charge of contravening an apprehended violence order?

Decision

Grant DCJ assessed the offence as falling at the low end of objective seriousness. Several factors supported this finding: only a small amount of property was stolen, the incursion occurred in daylight hours, it was brief and non-violent, there was no ransacking or damage, and the offender left promptly when detected. Any planning was unsophisticated, as evidenced by the offender leaving his own fingerprint at the scene.

The plea discount was set at 15%. Both the Crown and defence had submitted a range of 10 to 15%, and the court adopted the higher end of that range. His Honour applied the principles from R v Ponfield in assessing objective seriousness, noting that one of the Ponfield guidelines had been disapproved by the Court of Criminal Appeal in R v McNaughton and was therefore not applied.

On the offender's subjective circumstances, His Honour took into account a difficult upbringing, periods of stable employment in the mining industry, struggles with alcohol and ice, and the impact of prior periods in custody on his personal and business life. Although the offender had a criminal history, His Honour found it did not disentitle him to a degree of leniency.

Special circumstances were found to exist, justifying a non-parole period shorter than the standard proportion, to assist reintegration and reduce the risk of institutionalisation. A psychologist's report supported the finding that post-release supervision would benefit the offender. For the related charge of contravening the apprehended violence order, His Honour imposed a fine of $800, noting the breach was at the low end of the scale and that ongoing contact between the parties had been consensual.

Orders Made

  • The offender was convicted and sentenced to 2 years and 2 months imprisonment with a non-parole period of 16 months.
  • The sentence was backdated to commence on 3 February 2018, expiring on 1 April 2020.
  • The non-parole period commenced 3 February 2018, with the offender eligible for parole on 2 June 2019.
  • A fine of $800 was imposed for contravening the apprehended violence order.
  • A pre-existing s 9 bond (imposed for shoplifting) was called up with no further action taken, in light of the custodial sentence.
  • The shoplifting sentence of two months' imprisonment imposed while on remand was ordered to run concurrently.

Key Takeaways

  • The District Court confirmed that, while general deterrence is a significant consideration for break and enter offences, it cannot justify a sentence disproportionate to the actual offence or the particular offender: R v Moon [2000] NSWCCA 534.
  • A plea of guilty entered three days before a scheduled trial attracted a discount of 15%, at the higher end of the range submitted by both parties, reflecting the utilitarian value of the plea despite its lateness.
  • Objective seriousness for break and enter is assessed with reference to the Ponfield factors, subject to the qualification that guideline (iii) from that case was disapproved and not applied following R v McNaughton.
  • Special circumstances justifying a reduced non-parole period can be established where psychological evidence supports the need for post-release supervision to facilitate community reintegration and avoid institutionalisation.
  • A criminal history, including prior periods of imprisonment, does not automatically preclude an offender from receiving a degree of leniency at sentencing where the history is not of exceptional weight.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(2) (aggravated break and enter), s 166 (contravening apprehended violence order)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(k), 22

Cases
- R v McNaughton (2006) 66 NSWLR 56
- R v Moon [2000] NSWCCA 534
- R v Ponfield (1999) 48 NSWLR 327