Citation: R v Schmalz [2019] NSWDC 775
Court: District Court of New South Wales
Date: 20 September 2019
Judge: Haesler SC DCJ
Background
The offender, a 33-year-old Aboriginal man with an extensive criminal history, appeared for sentence having spent less than two years of the previous fifteen in the community. He had been sentenced by the same court only a year earlier, and had been treated with leniency at that time, with a significant special circumstances finding made to support his rehabilitation. He had initially honoured that commitment but relapsed into alcohol and drug use, returning to reoffending by December 2018.
On 4 December 2018, the offender broke into a residential property in Wollongong while a young woman was inside. He was disturbed by the occupant's sister returning home. What followed was a protracted and escalating confrontation: the offender fled, then returned twice, on the second occasion armed with a thick metal chain and padlock, which he swung in circles while demanding his belongings back.
When police arrived, the offender resisted arrest and required significant physical intervention, including wrist locks and knee strikes, before he could be handcuffed. A driver's licence belonging to another person was found in his possessions after arrest.
Legal Issues
- What was the appropriate sentence for aggravated break, enter and steal, given the confrontation and weapon use during the offence?
- How should the principle of totality be applied across four discrete offences?
- What weight should the offender's Aboriginal background, childhood trauma, history of sexual abuse, and institutionalisation carry in mitigation?
- How should the Court balance community protection against the need to restore the offender to the community?
- What discount applied for an early plea of guilty?
Decision
Haesler SC DCJ found all four counts objectively serious, though he placed the principal offence (aggravated break, enter and steal) towards the lower end of an already serious range when assessed against the standard non-parole period of five years. His Honour observed that anyone who breaks into occupied premises must understand the risk of confrontation, and that returning armed, even with an improvised weapon such as a chain and lock, dramatically escalated the danger to the victims.
The offender gave candid and remorseful evidence and offered no excuses. A forensic psychology report from Mr Brabant traced a background of normalised violence in the home, removal by Community Services in childhood, and recently disclosed childhood sexual abuse. His Honour accepted this history was directly relevant under the principles in Bugmy v The Queen [2013] HCA 37, which recognise that severe childhood deprivation can reduce the weight given to general deterrence, without eliminating it. The report indicated that meaningful rehabilitation would require trauma-focused treatment.
Haesler SC DCJ acknowledged that the Court could not simply warehouse the offender indefinitely. Community protection was a central concern, but so was creating conditions for the offender's eventual reintegration. His Honour was expressly guarded about prospects of rehabilitation, noting that while the offender displayed insight in custody and when drug-free, the pattern of relapse upon release was deeply entrenched.
A 25 per cent discount was applied across all counts for the early plea of guilty. Individual sentences were structured with accumulation, but the principle of totality governed the final aggregate, which was set at four years with a two-year non-parole period.
Orders Made
- Count 1, aggravated break, enter and steal (incorporating the Form 1 matter): 3 years 4 months imprisonment, non-parole period of 1 year 8 months.
- Count 2, armed with intent to commit an indictable offence: 1 year 10 months imprisonment.
- Count 3, resist officer in execution of duty: 3 months imprisonment.
- Count 4, goods in custody: 1 month imprisonment.
- Aggregate sentence: 4 years imprisonment, commencing 4 March 2019.
- Non-parole period: 2 years, commencing 4 March 2019; eligible for parole from 3 March 2021.
- Parole period: 2 years, expiring 4 March 2023, subject to supervision and compliance with reasonable directions of the Probation and Parole Service.
- The forensic psychology report of Mr Brabant (Exhibit 1) to be forwarded with the warrant.
Key Takeaways
- The District Court confirmed that returning to confront victims during a break and enter, even with an improvised weapon spontaneously picked up, constitutes independent serious criminality carrying a maximum of seven years imprisonment and must be reflected in the sentence.
- Under the Bugmy principle, severe childhood deprivation and trauma, including childhood sexual abuse disclosed for the first time relatively recently, remain relevant mitigating factors at sentence, particularly in reducing the weight otherwise attributed to general deterrence.
- Institutionalisation, meaning a pattern of spending nearly all adult life in custody, is a sentencing consideration that courts must weigh when assessing prospects of rehabilitation and the conditions necessary for eventual reintegration.
- A 25 per cent reduction applied across all counts for an early guilty plea, consistent with standard sentencing practice.
- Where multiple discrete offences arise from a connected episode, separate and distinct penalties must be identified for each, with some accumulation, but the totality principle requires that the aggregate sentence remain just and proportionate to all of the offending taken together.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW), s 166
Cases
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- Bugmy v The Queen (1990) 169 CLR 525