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District Court 15 November 2019

R v Gibson

[2019] NSWDC 923

Theft & property
SENTENCING PROPERTY OFFENCES AGGRAVATED ENTER DWELLING AGGRAVATING FACTORS RELEVANT FACTORS ON SENTENCE DETERRENCE

Citation: R v Gibson [2019] NSWDC 923
Court: District Court of New South Wales
Date: 15 November 2019
Judge(s): Payne DCJ

Background

The offender, a 34-year-old Aboriginal man from Moree with a history of illicit drug use and a significant prior criminal record, was sentenced for three principal property offences committed in the Grafton region between July and August 2018. The offences involved separate residential victims and ranged from aggravated break and enter with commission of larceny through to entering and breaking into dwellings with intent to steal.

The most serious offence arose from a jury trial. In the early hours of 24 August 2018, the offender entered a dwelling while its occupants were present, moving through multiple rooms, shining a light into a sleeping person's face, and stealing cigarettes, an iPad, a laptop, an external hard drive, house and car keys, and a bottle of spirits. He was convicted on that count after the jury returned a guilty verdict.

The two remaining offences were resolved by early guilty pleas under the Early Appropriate Guilty Plea scheme. One involved the offender entering a garage within the curtilage of a dwelling during the night while the household slept; the other involved an attempted entry through a window before the offender gained access to a garage, leaving without taking property. A separate larceny offence was also placed before the court on a Form 1 document to be taken into account on sentence.

  • The appropriate objective seriousness of each offence, and where each sat within the sentencing range
  • Whether the statutory aggravating factor of offending at the home of the victim (s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999) applied, without double-counting the already-embedded element of knowing persons were present
  • The weight to be given to the early guilty pleas, the offender's subjective circumstances, and the principles of general and specific deterrence
  • The correct approach to imposing an aggregate sentence, including findings of special circumstances and the application of totality principles

Decision

On objective seriousness, Payne DCJ accepted the Crown's submissions rather than the defence's. The judge placed the s 112(2) offence (aggravated break and enter and commit larceny) in the upper end of the mid-range and the s 111(2) offence (aggravated enter dwelling with intent) in the mid-range. The s 113(1) offence (break and enter with intent, no property taken) fell towards the bottom of the low range.

On the aggravating factor under s 21A(2)(eb), the judge found, having regard to R v Bennett [2014] NSWCCA 197 and Chung v R [2017] NSWCCA 48, that the aggravating feature of the offence being committed at the victim's home was present. The judge was careful, however, to avoid double-counting, noting that the element already embedded in the charged offences was the offender's knowledge that persons were present, and that this was not counted a second time.

The offender received a 25 percent utilitarian discount on the two guilty plea offences. His Aboriginal background, unresolved drug dependency since adolescence, and the psychological evidence were all acknowledged. However, the judge gave limited weight to expressions of remorse and noted that his prior record disentitled him to leniency. Both general and specific deterrence were treated as important considerations. The offender was not on conditional liberty at the time of the offending.

An aggregate sentence was imposed under the Crimes (Sentencing Procedure) Act 1999, with the judge recording indicative sentences for each individual offence and then applying totality principles to arrive at an overall term.

Orders Made

  • Count 1 (s 112(2), jury verdict): indicative sentence of 4 years, with a non-parole period of 2 years and 3 months
  • Sequence 3 (s 113(1), guilty plea): indicative sentence of 3 years and 3 months, reduced by 25 percent to 2 years and 5 months
  • Sequence 4 (s 111(2), guilty plea, including Form 1 larceny): indicative sentence of 4 years, reduced by 25 percent to 3 years
  • Aggregate sentence of 4 years and 8 months, commencing 25 February 2019 and expiring 24 October 2023
  • Aggregate non-parole period of 2 years and 6 months, commencing 25 February 2019 and expiring 24 August 2021
  • Special circumstances found, with an allowance of 10 months
  • Total effective sentence: 5 years and 2 months; total effective custodial component: 3 years

Key Takeaways

  • Where a charged offence already incorporates the element of knowing that persons are present, a sentencing court must take particular care not to double-count when also applying the statutory aggravating factor under s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 (offending at the victim's home).

  • The District Court confirmed that both R v Bennett [2014] NSWCCA 197 and Chung v R [2017] NSWCCA 48 inform how the "home of the victim" aggravating factor is applied alongside offence-specific aggravating elements.

  • A 25 percent utilitarian discount for early guilty pleas under the Early Appropriate Guilty Plea scheme is available in appropriate cases, but does not necessarily reduce the weight a court gives to personal deterrence and retribution.

  • Totality principles require a sentencing court, when imposing an aggregate sentence, to record indicative sentences for each individual offence before settling on the overall aggregate term.

  • An offender's Aboriginal background, drug dependency history, and psychological evidence are relevant subjective factors in sentencing, though a significant prior criminal record can reduce the weight given to personal mitigation.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 111(2), 112(2), 113(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(eb), 53A(2)(b)

Cases
- R v Bennett [2014] NSWCCA 197
- Chung v R [2017] NSWCCA 48