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District Court 11 September 2019

R v O’Hara

[2019] NSWDC 812

DrugsTheft & propertyFirearms & weaponsDomestic & family violence
CRIME BREAK, ENTER AND STEAL SENTENCE AGGREGATE SENTENCE COMMENCEMENT DATE

Citation: R v O'Hara [2019] NSWDC 812
Court: NSW District Court
Date: 11 September 2019
Judge: Wilson SC DCJ

Background

The offender, a 27-year-old man, appeared for sentence on six counts arising from a series of offences committed between May and October 2017. Five counts involved breaking, entering, and stealing from educational institutions in the Lake Macquarie and Central Coast regions. A sixth count involved stalking or intimidating his mother, constituting a domestic violence offence.

The offending occurred while the offender was on bail for separate drug supply charges. Police identified him through GPS data on his mother's car, a handwritten note listing victim schools found at the premises, and stolen property recovered during a search warrant. He had been battling drug addiction following a relationship breakdown, which had also cost him his job as a telecommunications technician.

The sentencing exercise was complicated by two pre-existing sentences the offender was already serving: one for drug offences and one for firearms offences. The central contested issue was the appropriate commencement date for the new aggregate sentence and how it should interact with those existing sentences.

  • What aggregate head sentence and non-parole period were appropriate for five counts of break, enter and steal and one count of stalking or intimidating, together with Form 1 charges?
  • What commencement date should the new aggregate sentence carry, given the offender was already serving sentences for drug and firearms offences?
  • Whether special circumstances existed to justify a non-parole period that falls below the statutory two-thirds proportion of the head sentence.
  • How the overall sentencing package, combining new and existing sentences, should be structured to achieve proportionality and reflect the purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999.

Decision

Wilson SC DCJ convicted the offender on all six counts and on the additional goods-suspected-of-being-stolen charge dealt with by certificate. The court accepted the agreed facts as the factual basis for sentence. The Form 1 charges attached to Counts 2 and 4 were taken into account to increase the penalties for those principal offences, with particular weight given to personal deterrence and retribution.

The court found special circumstances, which allowed the non-parole period to be set below the standard two-thirds threshold. An aggregate non-parole period of three years and nine months was set against an aggregate head sentence of six years, representing approximately 62.5% of the head sentence rather than the usual 66.7%.

The commencement date was fixed at 5 April 2019, rather than the date of sentence. This reflected the interplay with the offender's existing sentences and the time already spent in custody. The court applied periods of concurrency with some accumulation on the existing sentences.

When the new sentence was viewed alongside the two pre-existing sentences, the total custodial period reached seven years and six months, with a combined non-parole period of five years and three months. That overall ratio of approximately 70% sat below the 75% statutory threshold, which the court confirmed was consistent with the finding of special circumstances.

Orders Made

  • The offender convicted on Counts 1 to 5 (break, enter and steal, contrary to s 112(1)(a) of the Crimes Act 1900)
  • The offender convicted on Count 6 (stalk or intimidate to cause fear of physical or mental harm, domestic violence offence, contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007)
  • The offender convicted on the s 166 certificate matter (goods suspected of being stolen, contrary to s 527C(1)(c) of the Crimes Act 1900)
  • Aggregate sentence of six years imprisonment imposed, commencing 5 April 2019
  • Non-parole period of three years and nine months, expiring 4 January 2023
  • Head sentence expiring 4 April 2025

Key Takeaways

  • An aggregate sentence under the Crimes (Sentencing Procedure) Act 1999 requires the court to consider the cumulative effect of both the new and any pre-existing sentences to ensure overall proportionality.
  • Form 1 charges are not sentenced separately but increase the penalty for the principal charge to which they attach, specifically by amplifying the weight given to personal deterrence and retribution.
  • Special circumstances can justify a non-parole period below the statutory two-thirds proportion of the head sentence, but the court must confirm that the overall ratio across all sentences remains within the 75% threshold.
  • The commencement date of a new sentence is a substantive sentencing consideration, not a formality, particularly where the offender is already partway through earlier custodial terms.
  • Rehabilitation prospects and personal circumstances, including the offender's prior stable employment and family situation, are relevant to the exercise of the sentencing discretion, even where the objective seriousness of the offending is significant.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) ss 112, 114, 188, 527C
- Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5, 21A

Cases
- Cahyadi v Regina [2007] NSWCCA 1; (2007) 168 A Crim R 41
- R v Henry (1999) 46 NSWLR 346
- R v Ponfield (1999) 48 NSWLR 327
- Veen v The Queen (No 2) (1988) 164 CLR 465