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District Court 23 August 2019

R v Inglis-Smyth

[2019] NSWDC 944

Assault & violenceDrugsTheft & property

Citation: R v Inglis-Smyth [2019] NSWDC 944
Court: District Court of New South Wales
Date: 23 August 2019
Judge: Bright DCJ

Background

A 24-year-old offender appeared for sentencing on a charge of aggravated break and enter and commit a serious indictable offence, contrary to s 112(2) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 20 years imprisonment and a standard non-parole period of five years. The offending occurred on the night of 14 October 2018, when the offender entered the home of two victims at Long Jetty through an unsecured sliding door while they were asleep.

The male victim woke to noises, confronted the offender in the lounge room, and physically restrained him until police arrived. The offender had partially prepared to steal a PlayStation and had pocketed a set of keys and a garage door remote belonging to the victims, though all property was recovered at the scene. When police arrived, the offender resisted arrest.

Three further matters were taken into account on a Form 1 (a procedural mechanism allowing a court to consider additional offences without recording separate convictions): giving a false name to police, and possessing cannabis and oxycodone. The offender also faced a separate charge of resisting an officer in the execution of duty, dealt with by way of a s 166 Certificate.

  • How objectively serious was the aggravated break and enter, assessed against the factors in R v Ponfield (1999)?
  • What weight should the offender's drug addiction and deprived background carry in mitigation, applying the principles from Bugmy v R [2013] HCA 37?
  • Was a finding of special circumstances warranted, justifying a departure from the statutory ratio between the non-parole period and the balance of the term under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW)?
  • What discount was appropriate for the timing of the guilty plea?
  • How should the sentence interact with prior sentences already being served?

Decision

Bright DCJ assessed the objective seriousness of the aggravated break and enter as just below the middle of the range. Factors moderating severity included that the stolen property was minimal and immediately recovered, there was no vandalism, the victims were not elderly or disabled, the offender had no prior record for like offences, and the offending was unsophisticated. Against this, the offending occurred at night while the occupants were asleep, there was some limited planning evident from the equipment carried, and force was used during the confrontation.

Two statutory aggravating features were accepted: the offence was committed in the victims' home, and the offender was on conditional liberty at the time. Although no victim impact statement was provided, the court noted that the experience would undoubtedly have been traumatic for the victims, and recognised harm to victims as a relevant sentencing purpose under s 3A(g) of the Crimes (Sentencing Procedure) Act.

On the subjective case, the court applied the Bugmy principles, which recognise that a deprived background and entrenched disadvantage can reduce moral culpability even where an offender has a significant criminal history. The offender's serious drug dependency on oxycodone was treated as a mitigating factor, though it did not diminish the need for general and specific deterrence given the pattern of offending. A 25% discount was applied for the guilty plea, entered at Wyong Local Court on 2 April 2019.

Special circumstances were found, warranting a variation of the statutory non-parole to parole ratio under s 44(2). The court identified three reasons: this was the offender's first substantial custodial sentence, there was a significant risk of institutionalisation, and an extended period on supervised parole would better support rehabilitation and address the offender's drug dependency with professional assistance.

Orders Made

  • Convicted of aggravated break and enter and commit serious indictable offence (s 112(2), Crimes Act 1900)
  • Non-parole period of 18 months, dating from 14 April 2019, expiring 13 October 2020
  • Total term of 3 years imprisonment, expiring 13 April 2022 (starting term of 4 years, discounted 25% for plea)
  • Release to parole directed on 13 October 2020 (18-month parole period, reflecting special circumstances finding)
  • Sentence made cumulative upon prior concurrent sentences already being served
  • Convicted of resisting an officer in the execution of duty (s 58, Crimes Act 1900); sentenced to a community correction order for 2 years with standard conditions
  • Form 1 offences (false name, possession of cannabis, possession of oxycodone) taken into account

Key Takeaways

  • Applying Bugmy v R, the District Court accepted that a background of deprivation and entrenched drug addiction can reduce an offender's moral culpability, even where that offender carries a prior criminal history, though this operates alongside rather than displacing the need for deterrence.
  • Objective seriousness for aggravated break and enter is calibrated by reference to the Ponfield factors, including the value and recovery of stolen property, degree of planning, vulnerability of victims, and whether violence accompanied the offending.
  • Special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 can be established where an offender faces a first significant custodial sentence, faces a risk of institutionalisation, and requires an extended supervisory parole period to address rehabilitation needs, particularly around drug dependency.
  • A 25% guilty plea discount was applied, consistent with the timing of the plea at the Local Court stage, reflecting the principles in Imbornone v R [2017] NSWCCA 144.
  • Where prior sentences have already been served concurrently, a court may impose a new sentence cumulatively from the expiry of those prior terms, to preserve the overall integrity and proportionality of the sentencing outcome.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 58, 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5(1), 44(2), 54B(2), 166
- Drug Misuse and Trafficking Act 1985 (NSW), s 10(1)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 13(a)

Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act No 1 of 2002 (2002) 56 NSWLR 146
- Bugmy v R [2013] HCA 37; 249 CLR 571
- Imbornone v R [2017] NSWCCA 144
- R v Ponfield (1999) 48 NSWLR 327