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District Court 20 September 2019

R v Kelly; R v Ngati

[2019] NSWDC 521

Theft & property
CRIME SENTENCE

Citation: R v Kelly; R v Ngati [2019] NSWDC 521
Court: District Court of New South Wales
Date: 20 September 2019
Judge(s): Colefax SC DCJ

Background

Two co-offenders appeared for sentencing on a single charge each of break and enter with intent to commit serious indictable offence (larceny) under s 113(1) of the Crimes Act 1900 (NSW). The first offender had accumulated a debt of approximately $20,000 to an outlaw motorcycle gang and was offered debt forgiveness in exchange for organising a break-in at premises allegedly belonging to drug dealers. He recruited others, drove the group to a property at Gledswood Hills in Sydney, and purchased a crowbar and screwdriver for the job.

The second offender was recruited through a mutual acquaintance. He was the one who physically forced open a glass sliding door using the crowbar, triggering the alarm and causing the group to flee. He had a long-term diagnosis of schizophrenia, below-average cognitive functioning, and was found to have been exploited by the mutual acquaintance who arranged his involvement.

Both offenders pleaded guilty at an early stage and were arrested in November 2018. Their respective backgrounds, mental health histories, and roles in the offence were examined in psychological reports tendered to the court and oral evidence given by each offender.

  • What was the objective seriousness of the offence for each offender?
  • How did the differing roles of the two co-offenders affect their comparative moral culpability?
  • Whether dysfunctional upbringings and mental health conditions reduced moral culpability, and how that interacted with deterrence considerations under R v Bugmey
  • Whether full-time imprisonment was the only appropriate sentencing option for each offender, or whether an Intensive Correction Order (ICO) was available for one of them
  • What discount applied for early guilty pleas, and whether special circumstances warranted varying the standard non-parole period ratio

Decision

The court placed the objective seriousness of the offence roughly equidistant between the middle and the bottom of the range for offending of this type. Although the second offender physically carried out the break-in, the court found that the first offender bore greater moral culpability: he organised the enterprise, purchased the tools, and drove the group to the premises. The first offender's conduct was further aggravated by the fact that he was on parole for armed robbery at the time. The second offender was on two conditional bonds.

Both offenders had dysfunctional childhoods documented in psychological reports, which the court accepted as proven facts. Applying the principle from R v Bugmey, the court reduced the moral culpability of each offender accordingly, concluding that neither was an appropriate vehicle for the full weight of general deterrence, though general deterrence retained some application. Specific deterrence and community protection remained fully engaged for both.

Each offender received a 25 per cent discount for their early guilty plea. The court found that the sentencing threshold under s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (which requires that no sentence other than full-time imprisonment be appropriate before such a sentence is imposed) was crossed for both offenders. However, the court reached different sentencing outcomes. For the first offender, full-time imprisonment was imposed, with special circumstances found due to the value of a longer parole period for rehabilitation and his need for protection from the outlaw motorcycle gang while in custody. For the second offender, the court was satisfied that an ICO was more likely to address his risk of reoffending, having regard to community safety, and imposed a two-year sentence to be served by way of an ICO.

Orders Made

Jesse Kelly:
- Convicted of break and enter with intent to commit serious indictable offence
- Sentenced to 2 years 9 months imprisonment (after 25% discount from a notional 3 years 9 months)
- Non-parole period: 1 year 8 months, commencing 27 January 2020, expiring 26 September 2021
- Balance of term: 1 year 1 month, commencing 27 September 2021, expiring 26 October 2022
- Special circumstances found, varying the standard non-parole period ratio

John Ngati:
- Convicted of break and enter with intent to commit serious indictable offence
- Sentenced to 2 years imprisonment (after 25% discount from a notional 2 years 8 months), to be served by way of an Intensive Correction Order (ICO) commencing 20 September 2019
- ICO conditions included: no offending; supervision by a Community Corrections officer; abstention from illicit drugs, alcohol, and unprescribed lawful drugs; completion of any supervision plan organised by Community Corrections; reporting to the Liverpool Community Corrections office by 4:00pm on 23 September 2019

Key Takeaways

  • The District Court confirmed that co-offenders can attract meaningfully different levels of moral culpability even where their legal liability is identical, with the organiser of a criminal enterprise bearing greater culpability than the person who physically carried out the act.

  • Under the principle in R v Bugmey, a proven dysfunctional upbringing can reduce an offender's moral culpability and limit the full application of general deterrence, though that principle does not displace specific deterrence or community protection considerations.

  • Mental illness (here, schizophrenia combined with below-average cognitive functioning) and exploitation by others are factors capable of influencing both the sentencing outcome and the choice between custodial and non-custodial orders, particularly where rehabilitation prospects are assessed as reasonable.

  • An ICO remained available to the court even where the s 5 threshold for full-time imprisonment had technically been crossed, provided the court was satisfied that the ICO was more likely to address the offender's risk of reoffending having regard to community safety.

  • Special circumstances justifying a variation of the standard non-parole period ratio can arise where a longer parole period would meaningfully support rehabilitation, including where an offender's custody conditions (such as being placed in protection) limit rehabilitative opportunities during the non-parole period.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 113(1) (break and enter with intent to commit serious indictable offence; maximum penalty 10 years imprisonment)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 5 (threshold for full-time imprisonment); s 9 (conditional release orders referenced in the judgment)

Cases:
- R v Bugmey (High Court authority on the reduction of moral culpability arising from a disadvantaged background, cited and applied)