AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 16 October 2020

R v Prouting-Smith

[2020] NSWDC 644

Theft & property

Citation: R v Prouting-Smith [2020] NSWDC 644
Court: District Court of New South Wales
Date: 16 October 2020
Judge(s): Mahony SC DCJ

Background

The offender was sentenced for two offences of break, enter and commit a serious indictable offence (steal) under s 112(1)(a) of the Crimes Act 1900, each carrying a maximum of 14 years imprisonment. On the night of 25 May 2019, he broke into a medical centre in Chatswood using a crowbar, took $200, and caused damage by pouring cleaning liquid across the reception desk. Minutes later, he broke into an adjacent café using a crowbar and stole an iPad, tablet, iPhone and EFTPOS card, among other items. Three additional matters, including an attempted break and enter and two other property offences committed in March 2019, were placed before the court on Form 1 notices (that is, additional charges taken into account on sentence without a separate conviction being recorded).

Critically, all of the offending occurred while the offender was on parole. He had been released on 2 October 2017 after serving a sentence imposed in 2013, carrying a four-year non-parole period for earlier robbery-type offences. During the months before the index offences, he had relapsed into daily heroin use and regular methylamphetamine use.

The offender's personal history included significant mitigating factors. He suffered serious head trauma in a motor vehicle accident in 2005, resulting in right frontal lobe damage, memory loss and concentration issues before the age of 18. He also experienced mental health difficulties, struggles with his sexual identity, two suicide attempts, and a well-documented history of poly-substance addiction. By the time of sentencing, he had completed residential rehabilitation programs at the Sydney Clinic and WHOS (We Help Ourselves), and had the support of his family, partner and a Narcotics Anonymous sponsor.

Legal Issues

  • What was the appropriate objective seriousness of the two index offences under s 112(1)(a) of the Crimes Act 1900?
  • What aggravating and mitigating factors applied under the Crimes (Sentencing Procedure) Act 1999?
  • What weight should be given to the offender's rehabilitation progress, personal history, and time served or spent in quasi-custody?
  • Whether the aggregate sentence should be served by way of an Intensive Correction Order (ICO) rather than full-time imprisonment, applying the community safety and risk-of-reoffending framework.

Decision

Objective seriousness

The court assessed both index offences as falling below the mid-range of seriousness for s 112(1)(a) offences, accepting the Crown's concession on that point. The medical centre offence was placed in the middle of the low-range, noting the unsophisticated nature of the offending alongside the gratuitous disturbance of paperwork and damage caused (at [59]). The café offence was assessed towards the upper end of the low-range, reflecting the greater value of property stolen, though again the offending was opportunistic and involved minimal attempts to conceal the offender's identity (at [60]). The Form 1 matters were also assessed as below the mid-range for their respective offences, and the court noted that some accumulation on sentence was required to reflect their additional criminality (at [61]).

Aggravating and mitigating factors

The court found that committing the index offences while on parole was a statutory aggravating factor under s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999 (at [62]). The guideline judgment in R v Ponfield was applied, which identifies offending on conditional liberty and a prior record for like offences as matters of enhanced seriousness (at [68]-[69]). The offender's criminal history did not entitle him to leniency. On the other side of the ledger, the court accepted a range of mitigating factors, including the early guilty plea (attracting a 25% discount), the offender's personal circumstances including his acquired brain injury, mental health difficulties, and the connection between his drug relapse and the offending (at [63]-[67]).

Sentencing purposes and rehabilitation

General deterrence was identified as a relevant purpose, but the offender's mental health issues operated to diminish its weight in this case (at [70]). Specific deterrence was considered more important, given the offender's prior custodial experience for similar offending. The court took into account 149 days served in custody and time spent in residential rehabilitation programs, noting the court's broad discretion to backdate any sentence commencement date (at [71]). The court accepted the assessment that the offender presented a medium-low risk of reoffending and had good prospects of rehabilitation, particularly with continuing support structures in place (at [72]).

Intensive Correction Order

The court imposed an aggregate sentence of 2 years and 6 months imprisonment (at [75]). Applying the framework from R v Fangaloka and Karout v R, the paramount consideration in determining whether to make an ICO is whether such an order, or full-time detention, is more likely to address the offender's risk of reoffending (at [77]). Having regard to the offender's significant progress in rehabilitation, active engagement with supervision, time already spent in custody and quasi-custody, and the need for ongoing drug, alcohol and mental health support, the court found that a community-based order was the more appropriate response (at [77]-[78]). The sentence was ordered to be served by way of an ICO with conditions including supervision by Community Corrections, mandatory drug and alcohol rehabilitation, and abstinence from illicit drugs (at [78]).

Orders Made

  • The offender was convicted of two offences of break, enter and commit serious indictable offence (steal) under s 112(1)(a) of the Crimes Act 1900 (Sequences 1 and 3).
  • An aggregate sentence of 2 years and 6 months imprisonment was imposed.
  • Pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999, the sentence is to be served by way of an Intensive Correction Order, terminating on 15 April 2023.
  • ICO conditions include: no commission of any offence; submission to supervision by Community Corrections; continuation of drug and alcohol rehabilitation as directed; abstinence from illicit drugs for the duration of supervision; and reporting to Community Corrections at St Leonards within 7 days.
  • Non-compliance may result in formal warning, imposition of more stringent conditions, or revocation of the ICO, with revocation potentially requiring the remainder of the sentence to be served in full-time custody.

Key Takeaways

  • An aggregate sentence of 2 years and 6 months for two s 112(1)(a) offences committed while on parole was ordered to be served by way of an Intensive Correction Order, rather than full-time custody, where the offender had completed residential rehabilitation programs and demonstrated sustained engagement with supervision (at [77]-[78]).

  • Under the framework established in R v Fangaloka [2019] NSWCCA 173 and confirmed in Karout v R [2019] NSWCCA 253, the paramount consideration when determining whether to make an ICO is community safety, assessed by reference to which option, full-time detention or the ICO, is more likely to reduce the offender's risk of reoffending (at [77]).

  • Committing property offences while on parole remains a statutory aggravating factor under s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999, and prior robbery-type convictions weigh against leniency, even where significant mitigating factors exist (at [62], [69]).

  • The weight of general deterrence in sentencing may be reduced where the offender's mental health issues were causally relevant to the offending, though specific deterrence retains significance for offenders with prior custodial experience for like offences (at [70]).

  • Time spent in quasi-custody, such as residential rehabilitation programs, may be taken into account in the sentencing exercise, both when backdating the commencement of a sentence and when considering whether an ICO is appropriate (at [71], [78]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900
- Crimes (Sentencing Procedure) Act 1999

Cases
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
- Karout v R [2019] NSWCCA 253
- R v Fangaloka [2019] NSWCCA 173
- R v Gray [2018] NSWCCA 241
- R v Holloway [2016] NSWCCA 166
- R v Jarrold [2010] NSWCCA 69
- R v Osenkowski (1982) 30 SASR 212
- R v Ponfield (1999) 48 NSWLR 327
- R v Pullen [2018] NSWCCA 264
- Small v R [2018] NSWCCA 290
- White v R [2016] NSWCCA 190