Citation: R v John [2019] NSWDC 843
Court: District Court of New South Wales
Date: 30 August 2019
Judge(s): King SC DCJ
Background
The offender, a 36-year-old man, appeared for sentence on a single charge of aggravated entry into a dwelling with intent, knowing persons were present, contrary to s 111(2) of the Crimes Act 1900. The maximum penalty for that offence is 14 years' imprisonment. There is no standard non-parole period attached to it.
The offence occurred at approximately 1am on 18 August 2018 at a unit complex in Albury. The offender attended the victims' apartment with two co-offenders. When one of the occupants opened the door, a co-offender kicked it open. The two co-offenders entered the unit fully; the offender stepped only just inside the doorway and made a single remark to one of the occupants. One victim was injured during the incident, though the nature of that injury was not specified in the agreed facts.
The offender had an extensive criminal history across three states, though his previous sentences had consistently been short, reflecting courts' ongoing recognition of his significant personal difficulties. He had been on good behaviour bonds at the time of the offending, which constituted a relevant aggravating factor.
Legal Issues
- What was the objective seriousness of the offence, given the offender's limited role compared with his co-offenders?
- How should the offender's intellectual disability and severe childhood trauma bear on his moral culpability and the appropriate sentence?
- What weight should be given to the offender's criminal history, his prospects of rehabilitation, and his conditional liberty at the time of the offending?
- What type and length of sentence was appropriate in all the circumstances?
Decision
King SC DCJ assessed the objective seriousness of the offending as falling at the very bottom of the range. Although the offender was legally liable for the acts of his co-offenders by virtue of the "in company" element of the offence, his physical role was minimal: he stepped only just inside the doorway and made one remark. There was no evidence of property damage, and the nature of the victim's injury was not detailed.
The court received extensive material on the offender's background, including historical school reports and a psychological assessment. Those materials established that the offender had been mildly intellectually impaired since at least childhood, with language development equivalent to a child between five and a half and eight years of age when assessed at age twelve. He had been sexually abused from approximately age four, prostituted by his mother, and placed in foster care around age nine or ten. His foster carer provided a letter to the court confirming his background and ongoing connection with her family.
The psychological report confirmed that the offender's intellectual disability and the profound trauma of his early life significantly reduced his moral culpability. The court accepted this, while also noting that his prospects of rehabilitation were guarded and that re-offending could not be described as a low risk. The fact that he was on conditional liberty at the time of the offence was treated as a significant aggravating circumstance, though it did not displace the overall picture that warranted a non-custodial response.
Taking all of those matters together, the court imposed a Community Correction Order rather than a term of imprisonment. The 25% discount applied for the utility of the guilty plea, and the sentence was structured with conditions directed at supervision, drug abstinence, and engagement with treatment and counselling.
Orders Made
- The offender was convicted of aggravated entry into a dwelling with intent, knowing persons were present.
- Pursuant to s 8(1) of the Crimes (Sentencing Procedure) Act 1999, a Community Correction Order was imposed for a period of 18 months commencing 30 August 2019.
- Standard conditions applied: no further offending; appearance before the court if called upon.
- Additional conditions: abstention from prohibited drugs; submission to the supervision, guidance, and directions of Community Corrective Services for the duration of the order, including compliance with any directions to undertake examination, assessment, therapy, treatment, counselling, or urinalysis.
- The offender was directed to report to the Albury Community Corrections Office by 4pm that day.
Key Takeaways
- The District Court assessed objective seriousness at the very bottom of the range where a co-offender's physical participation was minimal, limited to standing just inside a doorway and making a single statement, even though the law made him liable for his co-offenders' conduct.
- A finding of significantly reduced moral culpability can flow from the combination of intellectual disability and severe childhood trauma, including histories of abuse and neglect, when those matters are properly established by psychological and historical evidence.
- Conditional liberty at the time of offending remains a significant statutory aggravating factor under the Crimes (Sentencing Procedure) Act 1999, even where the overall sentencing outcome is non-custodial.
- Guarded prospects of rehabilitation do not automatically preclude a community-based order; the court weighed that consideration alongside the offender's reduced culpability and the long-standing judicial recognition of his personal difficulties reflected in his prior sentencing history.
- A 25% discount for the utilty of a guilty plea was applied where the offender was committed for sentence from the Local Court, consistent with established sentencing practice.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 111(2) (aggravated entry into a dwelling with intent, knowing persons present)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 8(1) (Community Correction Orders)
Cases: No cases were cited in the judgment.