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District Court 5 December 2019

R v Sullivan

[2019] NSWDC 810

DrugsTheft & property
CRIME SENTENCE BREAK, ENTER AND STEAL

Citation: R v Sullivan [2019] NSWDC 810
Court: District Court of New South Wales
Date: 5 December 2019
Judge: Colefax SC DCJ

Background

The offender, a 37-year-old man with an extensive criminal history, appeared for sentencing on a single charge of breaking and entering a building and stealing, contrary to s 112(1)(a) of the Crimes Act 1900 (NSW). The maximum penalty for that offence is 14 years' imprisonment; there is no standard non-parole period.

Between 27 and 28 February 2019, the offender broke into Bringelly Public School, causing relatively minor damage, and stole 16 laptops and a Sphero robotics kit valued at just under $9,000. Critically, he committed this offence while on parole for an earlier offence of aggravated break and enter and committing a serious indictable offence in company.

The offender had a troubled background, including in utero exposure to heroin, dyslexia, early school departure, and long-standing ice addiction and schizophrenia. His parole was revoked following the index offence and other offences committed during the same parole period.

  • What is the appropriate objective seriousness of the offence, having regard to comparable offences of its kind?
  • What weight should be given to the offender's personal circumstances, including his drug dependency, mental illness, and disadvantaged background?
  • What sentence, including non-parole period, properly reflects all relevant factors including the guilty plea, the aggravating factor of commission while on parole, and the prospects for rehabilitation?
  • Whether special circumstances exist to justify departing from the standard non-parole period ratio.

Decision

The District Court assessed the objective seriousness of the offence as falling between the bottom and the midpoint of the range for offences of this type. The court rejected the Crown's submission that it sat just below the middle of the range. The theft of equipment from a primary school was described as a serious matter, even though breaking into a home (with its attendant trauma) was not involved. Commission while on parole was identified as an aggravating factor.

The court considered the offender's background at length. His mother's heroin use during pregnancy, his dyslexia, early school departure, and onset of ice addiction in his early twenties were treated as relevant mitigating context, though not as excusing the conduct. The court noted that the ice addiction had destroyed two relationships, excluded the offender from his children's lives, and driven his criminal activity, costing him approximately $1,500 per week to sustain.

On rehabilitation prospects, the court declined to accept the Crown's characterisation of those prospects as "dismal." The court observed that the offender consistently avoided drug use while in custody and performed reliably enough to work in the prison kitchen. Prospects were assessed as "guarded" rather than dismal, with the court expressing the view that the best environment for addressing the offender's drug problems was custody, and recommending referral to an intensive drug treatment program.

A finding of special circumstances was made to slightly reduce the non-parole period below the standard 75% ratio. The base sentence before the guilty plea discount was four years. With a one-quarter reduction for the plea, the final term was three years.

Orders Made

  • The offender was sentenced to three years' imprisonment, commencing 5 December 2019.
  • A non-parole period of two years was fixed, with the offender eligible for parole on 4 December 2021.
  • A balance of term of one year was fixed, commencing 5 December 2021.
  • The court recommended to the Commissioner of Corrective Services that the offender be referred to the intensive drug treatment program at the John Morony Correctional Facility.

Key Takeaways

  • The District Court placed the objective seriousness of a break-and-enter at a school below mid-range, distinguishing it from residential break-ins while still treating it as a serious offence given the impact on primary school students.
  • Commission of an offence while on parole operated as an aggravating factor, consistent with established sentencing principle.
  • A finding of special circumstances permitted a modest reduction in the non-parole period ratio below the standard 75%, reflecting the offender's need for rehabilitation support upon release.
  • Guarded rather than dismal rehabilitation prospects were found appropriate where an offender's in-custody conduct demonstrated capacity to abstain from drug use, even where out-of-custody history was poor.
  • Under s 112(1)(a) of the Crimes Act 1900 (NSW), the maximum penalty for break, enter and steal is 14 years' imprisonment, with no standard non-parole period applying.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(1)(a) (break and enter dwelling, house or building and steal)

Cases cited: None cited in the judgment.