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District Court 8 April 2020

R v Debortoli

[2020] NSWDC 466

Theft & propertyPublic order & justice offences
CRIME SENTENCE PEOPLE THERE EXTENSIVE CRIMINAL HISTORY NUMBER OF PAROLE BREACHES STEALING OF ITEMS OF LOW VALUE

Citation: R v Debortoli [2020] NSWDC 466
Court: District Court of New South Wales
Date: 8 April 2020
Judge: Norrish QC DCJ

Background

The offender, a 50-year-old man with an extensive criminal history spanning more than three decades, appeared for sentence on four charges arising from a series of offences committed over approximately four hours in the early morning of 4 September 2019 in the Waterloo area of Sydney. The offences included breaking and entering a café and stealing food and drink, entering a college building with intent to steal, an attempted aggravated break and enter of an apartment block (with persons known to be present), and entering another residential building with intent to steal. CCTV footage readily identified the offender, who was wearing a distinctive NFL jumper throughout.

All offences were committed while the offender was on parole. His parole was revoked in September 2019 following his arrest on 6 September 2019. The items stolen were of low value, consisting largely of foodstuffs and two milk crates, which the court noted may have reflected the offender's personal circumstances at the time.

The offender entered pleas of guilty to all charges. A detailed criminal history, custodial record, parole breach reports, and submissions from defence counsel were placed before the court.

  • What aggregate sentence was appropriate given the totality of the offending, the offender's extensive criminal history, and his multiple prior parole breaches?
  • How should the sentencing commencement date be fixed, given that the offender was already serving a balance of revoked parole at the time of sentencing?
  • Whether special circumstances existed under s 44 of the Crimes (Sentencing Procedure) Act 1999 to justify a non-parole period less than the standard 75% of the head sentence.
  • How should mitigating factors (guilty pleas, remorse, social disadvantage, drug dependency, and some evidence of rehabilitation) be weighed against significant aggravating factors (breach of parole, extensive criminal history)?
  • What weight, if any, should be given to COVID-19 considerations and the offender's health issues in fixing the sentence?

Decision

The court imposed an aggregate sentence of two years and eight months imprisonment, commencing on 6 January 2020 and expiring on 5 September 2022. A non-parole period of one year and six months was fixed, expiring on 5 July 2021. This produced a parole period of one year and two months, which Norrish QC DCJ described as modest overall but reasonably substantial relative to the head sentence.

The sentencing judge found that special circumstances existed under s 44 of the Crimes (Sentencing Procedure) Act 1999, departing from the standard 75% non-parole ratio to allow for an extended supervisory period. This was driven in part by the court's view that a longer period of post-release supervision might assist the offender, who had been institutionalised through repeated periods of custody since 1989 and struggled with long-standing drug dependency.

Norrish QC DCJ acknowledged several mitigating factors, including the guilty pleas, expressed remorse, the low monetary value of the items stolen, the offender's social disadvantage and drug dependency, and what the court accepted as a genuine, if brief, period of stable living prior to the offending. At the same time, the court gave weight to the significant aggravating factors: the offending occurred on parole, the offender's history included at least five separate parole breaches, and his performance on parole was described as "not particularly impressive."

The commencement date of 6 January 2020 was fixed in accordance with the principles discussed in Callaghan v R [2006] NSWCCA 58, which addresses how a sentencing court should approach the start date of a new sentence when an offender is already serving a balance of revoked parole. The court also acknowledged the emerging COVID-19 situation and the offender's health concerns as contextually relevant considerations.

Orders Made

  • The offender was convicted of all offences.
  • An aggregate sentence of two years and eight months imprisonment was imposed under s 53A of the Crimes (Sentencing Procedure) Act 1999, commencing 6 January 2020 and expiring 5 September 2022.
  • A non-parole period of one year and six months was fixed, commencing 6 January 2020 and expiring 5 July 2021, with earliest parole eligibility on 5 July 2021.
  • Indicative sentences were imposed as follows:
  • Break, enter and steal (Luke's Kitchen): 18 months imprisonment
  • Enter building with intent and larceny of milk crates (Taylor's College): 6 months imprisonment
  • Attempted aggravated break and enter with intent (including Form 1 matter): 18 months imprisonment
  • Aggravated enter dwelling with intent: 12 months imprisonment

Key Takeaways

  • Committing offences while on parole is a significant statutory aggravating factor under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999, and a history of multiple parole breaches is a weighty consideration when fixing both the head sentence and the non-parole period.
  • Special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 can support extending the parole period beyond the standard ratio where the offender's history of institutionalisation and drug dependency indicates a greater need for post-release supervision.
  • The District Court applied Callaghan v R to fix a commencement date that accounted for the period already served in custody following parole revocation, rather than commencing the sentence from the date of arrest or sentencing.
  • Low-value offending does not necessarily reduce an appropriate sentence where it occurs in the context of serious charges (including aggravated break and enter of residential premises with persons present) carrying maximum penalties of up to 14 years.
  • Social disadvantage, drug dependency, and a history of institutionalisation are recognised by the sentencing court as contextually relevant factors, though they operate alongside, rather than overriding, the weight given to an offender's criminal history and parole breaches.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 111(2), 112, 113
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2), 44, 53A

Cases
- Callaghan v R [2006] NSWCCA 58
- DPP(Cth) v De La Rosa [2010] NSWCCA 194
- Harris v R [2005] NSWCCA 204
- Hemsley v R [2004] NSWCCA 228
- Johnson v R [2004] HCA 15; 78 ALJR 616
- Markarian v R [2005] HCA 25; 228 CLR 357
- Mill v R (1988) 166 CLR 59
- Palu v R [2002] NSWCCA 381
- Pearce v R (1998) 194 CLR 610
- Ponfield v R (1999) 48 NSWLR 327
- R v Engert (1995) 84 A Crim R 67
- R v Huynh [2005] NSWCCA 220
- R v Israil [2002] NSWCCA 255
- R v XX (2009) 195 A Crim R 38
- Yardley v Betts (1979) 1 A Crim R 329