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District Court 18 September 2020

R v Matthews

[2020] NSWDC 570

Theft & propertyTraffic & driving
CRIME SENTENCE TAKE AND DRIVE CONVEYANCE.

Citation: R v Matthews [2020] NSWDC 570
Court: District Court of New South Wales
Date: 18 September 2020
Judge: Bourke SC DCJ

Background

The offender was found guilty following a judge-alone trial of two offences committed on 5 June 2019: aggravated break and enter with larceny, and taking and driving a conveyance without consent. Both offences were committed at the home of the victim, a medical professional living in New Lambton Heights near Newcastle.

The prosecution's case was built on circumstantial evidence, with the key piece being DNA recovered from a set of keys jammed into the track of a roller garage door. The DNA mixture found on those keys was assessed as more than 100 billion times more likely to have come from the offender and two unknown individuals than from three unknown persons in the Australian population. The offender conceded the DNA was his but denied committing the offences, claiming he had dropped off a friend near the area that evening.

The trial judge rejected the offender's evidence and was satisfied beyond reasonable doubt that the offender, alone or with others, entered the house in the early hours of the morning, stole the victim's wallet and car keys from the kitchen, and then drove away the victim's Porsche Macan without consent.

  • What is the appropriate sentence for each of the two offences, having regard to their objective seriousness?
  • How should the principle of totality apply where the two offences arose from a closely related single event?
  • Whether special circumstances existed justifying a variation from the standard ratio between head sentence and non-parole period.
  • What weight should be given to general deterrence in sentencing for residential break and enter offences?

Decision

Objective seriousness of count 1 (aggravated break and enter with larceny)

The court assessed the break and enter offence as falling below the mid-range of objective seriousness. While the offending occurred at a private home at night and the offender knew persons were inside, the items stolen were of relatively low value, there was no gratuitous vandalism, and the offence involved little planning or sophistication. The absence of other aggravating features under s 105A of the Crimes Act was also noted. Nonetheless, the court emphasised the significant psychological harm such offences cause to victims, who lose their sense of security in their own home, and affirmed that substantial weight must be given to deterrence.

Objective seriousness of count 2 (take and drive)

The take and drive offence was placed at around the mid-range of objective seriousness. The vehicle taken was an expensive luxury car with a distinctive personalised number plate, and the offence was committed from within the victim's home. The court described the offending as "naïve and stupid" given how readily identifiable the vehicle was; it was located the following day being driven by a third party.

Totality and special circumstances

The court applied the totality principle and treated the two offences as largely, though not entirely, a single related event, imposing only minimal accumulation between them. A finding of special circumstances was made, justified by the offender's need for an extended period of supervised release to address psychological difficulties and drug use through engagement with mental health professionals.

Orders Made

  • Aggregate sentence of four years imprisonment imposed, with a non-parole period of two years and eight months.
  • Sentence dated from 19 September 2019, with the head sentence expiring 18 September 2023 and the non-parole period expiring 18 May 2022.
  • Indicative sentence for count 1: three years nine months imprisonment, with a non-parole period of two years six months.
  • Indicative sentence for count 2: two years six months imprisonment.
  • Recommendation that the offender be considered for the Intensive Drug and Alcohol Treatment Programme run by Corrective Services.

Key Takeaways

  • Residential break and enter offences attract significant weight on general deterrence at sentence, regardless of the monetary value of items taken, because of the psychological harm caused by the invasion of the home's sanctity.
  • The District Court confirmed the principle from R v Hayes (1984) that courts regard the invasion of private homes as a serious social evil warranting meaningful custodial responses.
  • A finding of special circumstances was available where the offender's rehabilitation needs, including mental health treatment and drug intervention, made an extended post-release supervision period appropriate.
  • Applying the totality principle, where two offences arise from a single, closely related episode of criminal conduct, courts may impose only minimal accumulation between individual sentences to avoid an aggregate term that becomes disproportionate or crushing.
  • Objective seriousness remains calibrated to all the circumstances: a break and enter into an occupied home at night was nonetheless assessed below mid-range where the planning was unsophisticated, the value stolen was low, and no additional statutory aggravating features were present.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 3A (purposes of sentencing)
- Crimes Act 1900 (NSW), including s 105A (aggravating circumstances for break and enter offences)

Cases
- Bugmy v R [2013] 249 CLR 571
- R v Hayes (1984) 1 NSWLR 740