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District Court 15 August 2019

R v Perez

[2019] NSWDC 781

Theft & property

Citation: R v Perez [2019] NSWDC 781
Court: District Court of New South Wales
Date: 15 August 2019
Judge(s): M L Williams SC DCJ

Background

The offender, a Mexican national, was part of a group that carried out a series of residential break, enter and steal offences across southern Sydney suburbs over eight days in September 2015. The group operated in a coordinated manner: some members broke into homes while others acted as lookouts, all communicating via conference call intercepted by police. A tracking device on the group's vehicle also recorded their movements. In total, more than $50,000 worth of cash and property was stolen across eight offences.

When several co-offenders were arrested on 17 September 2015, the offender fled on foot and remained at large for nearly two years. He was arrested at Brisbane Airport on Christmas Day 2017 while attempting to leave Australia. On arrest, he repeatedly indicated his intention to plead guilty.

The offender appeared for sentence on four counts of aggravated break, enter and commit a serious indictable offence (larceny), each carrying a maximum of 20 years imprisonment and a standard non-parole period of five years. A further four similar offences were placed on a Form 1 (a mechanism under which additional offences are taken into account in setting the overall sentence without separate conviction). The offender had one prior conviction in Australia, for a larceny committed in November 2014, for which he had served nine months imprisonment.

  • What objective seriousness should be attributed to the offences, taking into account the planned nature of the enterprise?
  • How should parity with co-offenders sentenced by Blackmore DCJ and affirmed by the Court of Criminal Appeal be applied?
  • What weight should be given to the offender's subjective circumstances, including his background of deprivation, trauma, drug addiction, and expressions of remorse?
  • Whether special circumstances existed justifying a departure from the standard ratio between non-parole period and head sentence.
  • How should the Form 1 offences be taken into account, and how should questions of totality be addressed given the prior sentence already served?

Decision

Williams SC DCJ assessed the objective seriousness of the offending as just below mid-range. In reaching that conclusion, the court noted that the occupants were not home during the burglaries, damage was minimal in most instances, and the offences warranted description as a "crime spree." The planned and organised nature of the enterprise, including real-time coordination by conference call, was treated as a statutory aggravating factor under the Crimes (Sentencing Procedure) Act 1999.

On parity, both parties accepted that consistency with the sentences imposed on co-offenders Quintero and Carvajal (five years and three months with a non-parole period of four years, as affirmed by the Court of Criminal Appeal in Quintero v R; Carvajal v R; Salazar v R [2018] NSWCCA 190) was the appropriate reference point. The court noted that those co-offenders' non-parole periods exceeded the 75% statutory ratio.

The offender's subjective circumstances were given considerable weight. His background included witnessing his father's murder, drug addiction, a kidnapping ordeal in Mexico, and a deprived upbringing. The court applied the principles from Bugmy v The Queen (2013) 249 CLR 571, accepting that the offender's deprived background was relevant to moral culpability and specific deterrence. A psychologist's report linking substance misuse, depression, and post-traumatic stress to the offending was accepted, as were the offender's expressions of remorse. A 25% discount for the utilitarian value of the guilty plea was also applied.

The court found special circumstances, justifying a non-parole period representing a lower proportion of the head sentence than the standard ratio. This reflected the need for an extended period of supervised parole to support rehabilitation and reduce the risk of relapse. To address totality, the court exercised its discretion to commence the sentence two months after the offender's remand date rather than from the date of arrest.

Orders Made

  • The offender was convicted of each offence (Sequences 001, 004, 007, and 009).
  • An aggregate sentence of imprisonment of five years and three months was imposed, commencing 25 February 2018.
  • A non-parole period of three years and ten months was set.
  • Indicative sentences were recorded as follows:
  • Sequence 001: 2 years 2 months (NPP 1 year 7 months)
  • Sequence 004: 2 years 2 months (NPP 1 year 7 months)
  • Sequence 007: 2 years 2 months (NPP 1 year 7 months)
  • Sequence 009 (incorporating Form 1 matters 002, 003, 005, 012): 2 years 6 months (NPP 1 year 10 months)
  • Special circumstances were found.

Key Takeaways

  • Parity with co-offenders sentenced after appellate review was treated as a governing consideration, with both the Crown and defence accepting that consistency with Quintero and Carvajal was appropriate absent distinguishing factors.
  • Under the principles in Bugmy v The Queen, a history of severe deprivation, trauma, and drug addiction remains relevant to the assessment of moral culpability and the weight to be given to specific deterrence, even in serious organised offending.
  • Planned coordination of residential burglaries through real-time communication and assigned roles constitutes organised criminal activity as a statutory aggravating factor, capable of elevating the objective gravity of otherwise "not home" break and enters.
  • Special circumstances can be established where an offender requires an extended supervision period on parole to address underlying mental health and substance misuse issues identified as causally connected to the offending.
  • The court's discretion to adjust the commencement date of a sentence provides one mechanism for addressing totality where an offender has already served part of a separate sentence during the same period of custody.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A

Cases
- Attorney General's Application No. 1 [2002] NSWCCA 518; (2002) 56 NSWLR 146 (guideline judgment on Form 1 offences)
- Bugmy v The Queen (2013) 249 CLR 571 (deprived background in sentencing)
- Quintero v R; Carvajal v R; Salazar v R [2018] NSWCCA 190 (co-offender sentences on appeal)
- R v Ponfield [1999] NSWCCA 435 (objective seriousness of break and enter offences)
- R v Qutami (2001) 127 A Crim R 396 (caution regarding uncorroborated subjective evidence)