Citation: R v Jebara [2020] NSWDC 182
Court: District Court of New South Wales
Date: 6 April 2020
Judge: P Taylor SC DCJ
Background
The offender appeared for sentence having pleaded guilty to five charges of unlawful entry into residential premises, together with a related drug possession matter dealt with by certificate. The offences occurred over a fortnight in January 2019, with four of the five counts committed on the same day across neighbouring streets in Merrylands. The maximum penalties for the charges ranged from seven to fourteen years' imprisonment.
The offending involved a range of conduct: entering a granny flat through a window and stealing jewellery, a laptop, sunglasses and cash; attempting to enter an occupied family home in company with a co-offender; breaking into another home and ransacking it; stealing fishing rods from a garage and then attempting to sell them back to the victim; and entering a second garage before threatening a neighbour who said he would call police. The threat, "If you call the cops and I get done, I will get my mates and I will come back. I know where you live, I know what you look like and I will come back and get ya," was dealt with as a Form 1 offence of stalking or intimidating with intent to cause fear of physical harm.
A 20-year-old female co-offender was involved in one of the counts. She had spent eight months in custody and was ultimately given a twelve-month Community Corrections Order. The offender also possessed 0.4 grams of methylamphetamine when apprehended.
Legal Issues
- What aggregate sentence was appropriate for five counts of residential break-and-enter and related offences, having regard to the maximum penalties, the objective seriousness of the conduct, and applicable sentencing principles?
- What discount applied for the early guilty plea entered before committal?
- Whether parity with the co-offender's sentence was a relevant consideration in fixing the overall penalty.
- Whether special circumstances existed justifying a variation in the standard ratio between the non-parole period and the head sentence.
- How to treat the Form 1 intimidation offence and the drug possession certificate when constructing the aggregate sentence.
Decision
His Honour imposed an aggregate sentence of four years' imprisonment, commencing 30 January 2019 and concluding 29 January 2023, with a non-parole period of two years and six months, making the offender eligible for parole on 29 July 2021.
The court identified several aggravating features across the counts. Count 2 was committed in company and involved a 15-year-old child present at the home. Counts 4 and 5 involved victims who were at home at the time. Count 3 involved the taking of personal identification documents and the ransacking of the premises. Citing the English Court of Appeal's remarks in R v Brewster, His Honour emphasised that residential burglary causes not only financial loss but also a serious and lasting sense of violation and insecurity for victims, heightened when occupants are present.
His Honour accepted that the offending lacked professional or significant planning, but noted, following Andrew Smith v R, that a lack of planning is common in break-and-enter offences and does not materially reduce their seriousness. He applied the principle from McGoldrick v Regina that heavy sentences are generally warranted for repeat offenders committing break-and-enter offences on domestic premises. The offender had a relevant prior record.
A 25% discount was applied to reflect the utilitarian value of the early guilty plea. The co-offender's sentence was of limited guidance on parity, as she had been sentenced only for the least serious of the charges. His Honour found special circumstances arising from the offender's drug addiction, resulting in a non-parole period that represented a larger proportion of the head sentence than would otherwise apply, to allow for structured supervision and treatment on release.
Orders Made
- Aggregate sentence of imprisonment for four years, commencing 30 January 2019 and concluding 29 January 2023.
- Non-parole period of two years and six months, with eligibility for parole from 29 July 2021.
- Individual sentences for each count: Count 1 (20 months), Count 2 (16 months), Count 3 (20 months), Count 4 (18 months), Count 5 (20 months, incorporating Form 1 offence).
- Three months' imprisonment in respect of the drug possession certificate.
- Special circumstances found and applied.
Key Takeaways
- A 25% discount for guilty plea applied where the plea was entered early, before committal, reflecting its utilitarian value to the criminal justice system.
- Under the principle in McGoldrick v Regina, heavy sentences are generally appropriate for repeat offenders who commit break-and-enter offences on domestic premises, whether or not the offence is an aggravated form.
- The absence of planning in break-and-enter offending does not of itself reduce objective seriousness in any material way, as a lack of planning is a common feature of such offences rather than a meaningful mitigating circumstance.
- Parity with a co-offender's sentence carries limited weight where the co-offender was charged only with the least serious count, making direct comparison of little utility in setting the overall penalty.
- Special circumstances were established by the offender's drug addiction, warranting a reduced ratio between the non-parole period and the head sentence to facilitate rehabilitation and supervised reintegration.
Legislation and Cases Referenced
Legislation
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5
Cases
- R v Brewster [1998] 1 Cr App R 220
- McGoldrick v Regina [2012] NSWCCA 7
- R v Huynh [2005] NSWCCA 220
- Andrew Smith v R [2013] NSWCCA 209