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District Court 2 August 2019

R v Ivers

[2019] NSWDC 428

Theft & property
SENTENCING SPECIAL CIRCUMSTANCES FOUND

Citation: R v Ivers [2019] NSWDC 428
Court: District Court of New South Wales
Date: 2 August 2019
Judge(s): Weinstein SC DCJ

Background

The offender pleaded guilty to one count of entering a dwelling house with intent to commit a serious indictable offence in circumstances of aggravation (namely, in company), contrary to s 111(2) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is 14 years imprisonment, and there is no standard non-parole period.

The offence occurred on the night of 7 to 8 December 2017. The offender and an unknown co-accused entered a Bellevue Hill residence while the occupants and their two children were asleep. The offender gained entry through an open ground-floor window and stole laptops, mobile phones, credit cards, identity documents, a car key, and other items belonging to the victims. A Form 1 larceny charge (theft of property valued between $2,000 and $5,000) was also taken into account.

The offender had an extensive criminal history dating to 1999, including prior break-and-enter offences. Critically, he committed this offence only nine days after being released on parole from a sentence that itself included aggravated break-and-enter charges.

  • What was the appropriate sentence for the principal offence, having regard to the aggravating and mitigating factors?
  • What discount, if any, was warranted for the guilty plea?
  • Whether special circumstances existed to justify reducing the non-parole period below the otherwise applicable proportion of the head sentence.

Decision

Weinstein SC DCJ identified several significant aggravating factors. These included the offender's lengthy record of prior convictions (including offences of the same type), the fact that the offence was committed in company, and the offender's breach of parole. The judge characterised the parole breach as an abuse of the freedom granted to the offender, noting that the offence was committed within nine days of his release and that drug use was also disclosed during the parole period.

A 20 percent discount was applied to the sentence in recognition of the guilty plea. The head sentence was backdated to account for time already served in custody. The judge allowed 90 days of the 340 days in custody to be attributed to the parole breach and backdated the balance of 250 days.

On the question of special circumstances, the judge found that the offender's unresolved drug addiction, untreated history of sexual abuse (both requiring close supervision on release), and the recent diagnosis of his sister with Stage 3 cancer collectively justified a departure from the standard non-parole period ratio. These factors reduced the non-parole period from what would otherwise have been 75 percent of the head sentence to approximately 68.8 percent, allowing for a longer period on supervised parole to address the offender's rehabilitation needs.

Orders Made

  • The offender was convicted of one count of entering a dwelling house with intent to commit a serious indictable offence in circumstances of aggravation (s 111(2), Crimes Act 1900).
  • Sentenced to imprisonment for 2 years, 7 months and 6 days, commencing 20 March 2018.
  • Non-parole period of 1 year, 9 months and 15 days.
  • Head sentence to expire on 25 October 2020.
  • Eligible for release on parole on 3 January 2020.

Key Takeaways

  • Committing an offence within days of release on parole is a recognised aggravating factor, reflecting an abuse of the freedom granted and warranting explicit weight in sentencing.
  • A 20 percent guilty plea discount was applied in accordance with established principles, consistent with Markarian v The Queen and Muldrock v The Queen.
  • Under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, a court may depart from the standard non-parole period ratio where special circumstances are established; here, unresolved addiction, untreated trauma, and family circumstances together satisfied that threshold.
  • Where no standard non-parole period applies to an offence, the sentencing discretion remains broad, and the court must weigh all factors under s 3A and s 21A of the Crimes (Sentencing Procedure) Act 1999.
  • Prior convictions for offences of the same kind carry significant weight as an aggravating factor, reinforcing the need for both specific and general deterrence in home invasion-type offences.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 111(2), 117
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A, 44(2)

Cases:
- Muldrock v The Queen (2011) 244 CLR 120
- Markarian v The Queen [2005] HCA 25
- Veen v The Queen [No 2] (1988) 164 CLR 465