Citation: R v Attard [2019] NSWDC 722
Court: District Court of New South Wales
Date: 31 October 2019
Judge: Colefax SC DCJ
Background
The offender appeared for sentencing on two principal offences: aggravated break and enter and commit a serious indictable offence (s 112(2) of the Crimes Act 1900 (NSW)), and break, enter and steal (s 112(1)(a)). Each principal offence was accompanied by a related Form 1 matter. A separate matter on a section 166 certificate (furnishing false information to a licensee) was also before the court.
The first offence occurred on 12 October 2018 at a residential property in Casula. The occupant was asleep in the house while the offender broke in, ransacked the premises, and stole a range of items including jewellery, a car key, and a mobile phone. All stolen items were subsequently recovered by police, who located the offender nearby using a tracker dog. The aggravating circumstance for this offence was the offender's possession of a butter knife capable of use as a housebreaking implement.
The second offence occurred less than two weeks later, while the offender was on bail, at a residential property in Parklea. The two occupants had left for the day when the offender broke in and ransacked the premises. The stolen items, some of sentimental value, were never recovered. The Form 1 matter for this offence concerned the disposal of that stolen property.
Legal Issues
- What was the appropriate objective seriousness of each principal offence?
- How should the offender's significant criminal history be weighed, including the application of Veen (No 2) principles?
- What weight should be given to the offender's deeply disadvantaged background, including childhood abuse and serious long-term drug dependency, under R v Bugmy?
- Whether an early guilty plea discount applied, and at what rate.
- Whether special circumstances existed justifying a departure from the standard non-parole period ratio.
- What start date should apply to the aggregate sentence.
Decision
His Honour assessed the first principal offence as sitting between the lower end and the middle of the range for offences of its kind. The second principal offence was assessed as a mid-range offence. Both were additionally aggravated by the fact that they occurred in the victims' homes and by the offender's extensive criminal history, which engaged Veen (No 2). The second offence carried the further aggravation of having been committed while on bail.
The court gave considerable weight to the offender's background. His Honour accepted that the offender had suffered a profoundly abusive childhood within the meaning recognised by the High Court in R v Bugmy: his father was violent toward the family, the offender began using drugs at age seven, and by thirteen he was living on the street and using heroin. A trusted stepfather figure was murdered in 2012. His Honour found that the offender's persistent offending was a direct consequence of this background and the entrenched drug dependency it produced, the habit costing approximately $3,500 per week at its peak.
An early guilty plea discount of 25 per cent was applied to each principal offence. His Honour declined to find special circumstances, concluding that the non-parole period to be served would be sufficient to support rehabilitation, and that the head sentence was deliberately lenient. The section 166 certificate matter was dismissed pursuant to section 10, given the custodial sentences being imposed.
The court fixed the commencement date at 12 May 2019, aligning it with the start of a sentence for a separate break and enter offence. His Honour reasoned that it would have been reasonable for all three break and enter matters to have been dealt with together, and that the fragmentation of proceedings was not the offender's fault. The offender was referred to the Parramatta Drug Court for assessment for the compulsory drug treatment correctional centre program.
Orders Made
- Aggregate sentence of 6 years imprisonment for the two principal offences.
- Non-parole period of 4 years and 6 months, commencing 12 May 2019 and expiring 11 November 2023.
- Balance of term of 1 year and 6 months, commencing 12 November 2023 and expiring 11 May 2025.
- Section 166 certificate matter (furnishing false information to a licensee) dismissed pursuant to section 10 of the Crimes Act 1900.
- Referral to Parramatta Drug Court for assessment for the compulsory drug treatment correctional centre program.
Key Takeaways
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The District Court applied Veen (No 2) as an additional aggravating factor where the offender's criminal history demonstrated a persistent pattern of similar offending over many years, even while acknowledging that prior offending cannot be used to increase a sentence beyond what is proportionate to the current offences.
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Under R v Bugmy, a profoundly dysfunctional childhood marked by family violence, early exposure to drugs, and homelessness can operate as a significant mitigating factor going to moral culpability, even where the offender has an extensive adult criminal history.
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Committing a further offence while on bail for a substantially similar offence constitutes a distinct aggravating factor, reflected here in the higher indicative sentence for the second principal offence.
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An aggregate sentencing approach requires the court to state indicative sentences for each principal offence before determining the overall term, ensuring transparency in how component sentences inform the aggregate.
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A sentencing court may exercise deliberate leniency and decline to find special circumstances where the non-parole period is considered sufficient to accommodate rehabilitation, particularly where the offender is referred for assessment for a drug treatment program.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 112(1)(a), 112(2), 10, 166
Cases:
- Veen v The Queen (No 2) (1988) 164 CLR 465 (principles on criminal history as an aggravating factor)
- R v Bugmy [2013] HCA 37 (principles on the mitigating relevance of a deprived or abusive background)