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District Court 25 March 2019

R v Cooper

[2019] NSWDC 968

Theft & property

Citation: R v Cooper [2019] NSWDC 968
Court: District Court of New South Wales
Date: 25 March 2019
Judge(s): Tupman DCJ

Background

The offender appeared for sentence on two groups of aggravated break, enter and steal offences committed across two distinct periods. The first group, the "Redfern offences," involved five substantive and Form 1 offences occurring between 2014 and 2016. The second group, the "Paddington offences," comprised three offences committed in June and July 2017, while the offender was on bail awaiting trial for the Redfern matters.

The offender's method was systematic. He posed as a tradesman, sometimes using false identification, and gained access to victims' homes under the pretence of performing maintenance or inspections. Many victims were elderly residents of low-income housing. Once inside, he stole cash, typically taking advantage of moments when the victims were out of sight.

The offender claimed that a gambling addiction had driven his offending, but no supporting evidence was placed before the Court. His criminal history included similar prior offending, and the Court found he had demonstrated limited insight into his conduct.

  • What discount applied to each set of pleas of guilty, given that the Redfern pleas were entered late (mid-trial) and the Paddington pleas were entered early in the Local Court?
  • How should the Court reflect the objective seriousness of the offences, the offender's personal circumstances, and the principle of totality when structuring aggregate sentences?
  • What weight should be given to the offender's criminal history, limited rehabilitation prospects, and the aggravating circumstance of offending while on bail?

Decision

Tupman DCJ characterised both sets of offences as sitting around the middle of the range for objective seriousness. The offending involved deliberate deception, premeditation, and the targeting of vulnerable victims in their own homes. The fact that the Paddington offences were committed while the offender was on bail for the Redfern matters was a significant aggravating factor.

On the question of guilty plea discounts, her Honour applied a 15% discount for the Redfern offences. Those pleas were entered three days into a two-to-three week trial, meaning the full 25% utilitarian discount was not warranted. However, the pleas still carried some utilitarian value, particularly in sparing elderly complainants from giving evidence. The full 25% discount applied to the Paddington offences, which were the subject of early pleas in the Local Court, consistent with the principles in R v Thomson and Houlton.

Structuring the overall sentence required balancing the principle of totality with appropriate reflection of the total criminality across both groups of offences. The Court imposed two separate aggregate sentences, partially accumulated, resulting in a total head sentence of four years and six months with an overall non-parole period of three years. Her Honour noted that some adjustment to the mathematical arrangement of the sentences was necessary to give proper effect to the intended non-parole period, while preserving a meaningful period on parole.

Orders Made

  • Convicted on each offence.
  • Redfern offences (sequences 1 and 7, ex officio indictment): Aggregate sentence of 3 years and 6 months, commencing 10 July 2017 and expiring 9 January 2021; aggregate non-parole period of 2 years and 6 months, expiring 9 January 2020; parole of 12 months thereafter.
  • Paddington offences (sequences 1, 2 and 3): Aggregate sentence of 2 years and 6 months, commencing 10 July 2019 and expiring 9 January 2022; aggregate non-parole period of 12 months, expiring 9 July 2020; parole of 18 months thereafter.
  • Overall: total sentence of 4 years and 6 months with an overall non-parole period of 3 years.
  • Five Form 1 offences taken into account when sentencing for count 1 of the Redfern indictment.
  • No compensation order made (the Crown did not press for one).

Key Takeaways

  • The District Court applied a reduced guilty plea discount of approximately 15% where pleas were entered three days into a scheduled two-to-three week trial, recognising utilitarian value without conferring the full 25% discount available for timely pleas.
  • Committing further offences while on bail is a significant aggravating factor that weighs against an offender at sentencing and affects how sentences are structured relative to each other.
  • A claimed explanation for offending, such as a gambling addiction, carries no mitigating weight unless it is supported by evidence before the Court.
  • Where mathematical constraints arise in partially accumulating aggregate sentences, the Court may adjust the formal structure of the sentence to preserve the intended overall non-parole period and parole period, rather than the precise head sentence figures.
  • Targeting elderly, low-income victims in their own homes, and using deception to gain entry, are features that bear on the objective seriousness of aggravated break, enter and steal offences under ss 112(2) and 113(2) of the Crimes Act 1900 (NSW).

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 112(2), 113(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 53A

Cases:
- R v Ponfield [1999] NSWCCA 435; (1999) 48 NSWLR 327
- R v Thomson and Houlton [2000] 49 NSWLR 383