Citation: R v Connell [2019] NSWDC 386
Court: District Court of New South Wales
Date: 19 June 2019
Judge(s): M L Williams SC DCJ
Background
The offender, a man nearly 52 years old at the time of sentencing, appeared unrepresented before the District Court having pleaded guilty to five counts of breaking, entering and stealing under s 112 of the Crimes Act 1900. The offences, committed between August 2016 and March 2017, centred on a series of commercial burglaries in northern New South Wales and south-east Queensland, including the theft and forced opening of ATM machines from cafes, a bar, and a pizza restaurant.
The offender had a criminal record spanning 31 pages, with approximately 20 years of cumulative custody, including juvenile detention from the age of 13. He was on conditional liberty (parole) at the time of at least some of the offences.
Two additional offences were placed on a Form 1 (a procedural mechanism allowing offences to be taken into account on sentence without separate conviction): disposing of stolen property across state lines, and threatening a witness. The witness threat arose after the offender, while in custody at Grafton, approached a Crown witness and made a threatening remark upon learning the witness intended to give evidence against him.
Legal Issues
- What aggregate term of imprisonment and non-parole period was appropriate for five break, enter and steal offences, two Form 1 matters, committed by an offender with an extensive criminal history and while on parole?
- What guilty plea discounts applied to each count, and how did they affect the overall sentence?
- Whether special circumstances existed justifying a departure from the standard ratio between the non-parole period and the total sentence.
- How to apply the principles of totality and accumulation to avoid a "crushing" sentence while still reflecting the objective seriousness of the conduct.
- What weight should be given to the offender's subjective circumstances, including a profoundly difficult background, expressed remorse, and prospects of rehabilitation?
Decision
The court assessed the objective seriousness of the break, enter and steal offences as falling in the lower range, accepting the Crown's concession that the offences involved limited planning and were not significantly aggravated on that basis. However, the fact that the offender was on parole at the time, and his extensive prior record, were both treated as aggravating factors under the Crimes (Sentencing Procedure) Act 1999.
Most counts attracted a 25 per cent discount for the utilitarian value of the guilty pleas, with Count 5 attracting only 10 per cent. The court drew a comparison to R v Eldridge and Ors [2012] NSWDC 231, where an offender involved in ATM offences totalling approximately two million dollars received nine and a half years with a six and a half year non-parole period, noting that the present matter was less serious in scale.
On subjective matters, the court accepted that the offender had experienced a genuinely traumatic life. The deaths of two brothers during his formative years, a history of physical and sexual abuse in youth detention, and long-term drug dependence were all considered. The court found his remorse to be genuine and his rehabilitation prospects reasonable, given what was described as a belated but credible recognition that he needed to remain drug-free and out of trouble.
The court found special circumstances, primarily because of the risk of institutionalisation given the offender's extensive custodial history, and the clear need for an extended period of post-release supervision and engagement with rehabilitation programs. This finding permitted the non-parole period to represent a smaller proportion of the total sentence than the statutory default.
Orders Made
- The offender was convicted of each offence.
- An aggregate sentence of imprisonment of 6 years and 6 months was imposed, commencing 1 November 2017 and expiring 30 April 2024.
- A non-parole period of 3 years and 3 months was set, expiring 31 January 2021, with the offender eligible for parole on that date.
- Indicative sentences were set as follows:
- Count 1: 2 years
- Count 2: 2 years
- Count 3 (including Form 1 matters): 3 years
- Count 5: 2 years and 6 months
- Count 7: 2 years
- Special circumstances were formally found.
Key Takeaways
- The District Court applied the totality principle from Pearce v The Queen (1998) 194 CLR 610 to ensure the aggregate sentence, though reflecting multiple serious offences, did not become a "crushing" sentence disproportionate to the offender's overall criminality and circumstances.
- A finding of special circumstances under the Crimes (Sentencing Procedure) Act 1999 can be justified where an offender faces a real risk of institutionalisation and requires an extended supervisory period on parole to support rehabilitation, even where the criminal history is extensive.
- Guilty plea discounts applied count by count, and not all counts attracted the same discount: the timing and circumstances of each plea determined whether a 25 per cent or lesser reduction was warranted.
- The Form 1 procedure allowed the court to take into account a witness-threatening offence and a cross-border receiving charge without imposing separate penalties, though those matters were reflected in the indicative sentence for Count 3.
- Profound subjective hardship, including childhood trauma, the loss of siblings, and a history of institutional abuse, remained relevant to sentence even where an offender's criminal record was lengthy, particularly in assessing remorse and rehabilitation prospects.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 112, 326
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
Cases:
- Pearce v The Queen (1998) 194 CLR 610
- R v Eldridge and Ors [2012] NSWDC 231
- R v Ponfield (1999) 48 NSWLR 327
- R v XX (2009) 195 A Crim R 38