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District Court 9 November 2020

R v Hewitt

[2020] NSWDC 686

Theft & property
CRIMINAL LAW SENTENCING BREAK, ENTER AND STEAL OFFENCE DRUG ADDICTIONS

Citation: R v Hewitt [2020] NSWDC 686
Court: District Court of New South Wales
Date: 9 November 2020
Judge: Abadee DCJ

Background

The offender, a 44-year-old man with an extensive criminal history, appeared for sentencing after pleading guilty to breaking and entering a Sydney restaurant and stealing a backpack containing $1,000 in cash, contrary to s 112(1)(a) of the Crimes Act 1900 (NSW). The offending occurred on 30 October 2019 at the Hunter Connection shopping complex, when the offender entered the unattended restaurant after the owner had briefly stepped away. CCTV footage captured him leaving the area with the backpack.

The offender had a lengthy record of similar offences in both New South Wales and Queensland, dating back to an early age. At the time of the offending, he was subject to a Community Correction Order imposed in June 2019, meaning he was on conditional liberty.

A psychologist's report provided significant background on the offender's upbringing, including exposure to domestic violence, parental substance abuse, poverty, interrupted schooling, and physical abuse. He had been using drugs since his early teenage years and had been diagnosed with complex developmental trauma and opioid use disorder.

  • Whether the offending fell at the low end of the range of seriousness for a break, enter and steal offence under s 112(1)(a)
  • Whether the Bugmy principles applied, and how the offender's childhood disadvantage and resulting drug addiction should affect the sentence
  • Whether the s 5 threshold for imprisonment (that no penalty other than full-time detention is appropriate) was met
  • Whether special circumstances existed to justify a longer parole period relative to the non-parole period
  • How the principles of totality and accumulation should apply, given the offender was already serving a separate sentence

Decision

Abadee DCJ accepted the offender's submission that the offending sat at the low end of seriousness for this type of offence. The restaurant was unattended, there was no damage to property, no violence, and the amount stolen was modest. However, the offending was aggravated by the fact that the offender was on a Community Correction Order at the time.

His Honour applied the Bugmy principles, accepting that the offender's childhood disadvantage, including exposure to domestic violence, abuse, poverty, and interrupted schooling, had materially contributed to his offending. The Court confirmed that the effects of such disadvantage do not diminish over time. The drug addictions flowing from that background were treated not as entirely a matter of free choice but as rooted in that disadvantaged upbringing, drawing on the reasoning in R v Henry and R v Fernando.

Despite evidence of some remorse and expressed receptiveness to rehabilitation, the Court found the offender's prospects to be guarded at best, given his continuous record of similar offending since at least 2006. The s 5 threshold for full-time imprisonment was properly conceded and confirmed. Special circumstances were found to exist, warranting a longer parole period, primarily because the offender had only recently undergone thorough psychological assessment and had a treatment plan in place for the first time.

On totality, the Court accepted that some concurrency with the existing sentence was appropriate, but declined to grant substantial concurrency. Because the current offence was entirely unrelated to the other matters, a meaningful degree of accumulation was warranted.

Orders Made

  • The offender was sentenced to 1 year and 6 months imprisonment, deemed to have commenced on 10 July 2020 and expiring on 9 January 2022.
  • Non-parole period of 10 months, with eligibility for parole from 9 May 2021.

Key Takeaways

  • The District Court confirmed that Bugmy v the Queen (2013) 249 CLR 571 applies in sentencing for property offences, and that the mitigating effects of childhood disadvantage do not fade over time, even where an offender has an extensive adult criminal history.
  • Where drug addiction is causally connected to childhood disadvantage rather than being purely a matter of personal choice, courts may treat that addiction as part of the Bugmy analysis, reducing the degree to which it aggravates culpability.
  • An offender's breach of conditional liberty at the time of offending remains an aggravating factor, even where the objective seriousness of the offence is otherwise low.
  • Special circumstances justifying a longer parole period can be established where an offender has only recently engaged with psychological assessment and has a concrete rehabilitation plan, particularly where there is a risk of institutionalisation.
  • The principle of totality does not automatically produce substantial concurrency where the current offence is entirely unrelated to the offences underlying the existing sentence; meaningful accumulation may remain appropriate in those circumstances.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5

Cases
- Bugmy v The Queen (2013) 249 CLR 571
- R v Fernando (1992) 76 A Crim R 58
- R v Harris (2007) 171 A Crim R 267
- R v Henry (1999) 46 NSWLR 346
- R v Maher [2004] NSWCCA 177
- R v Scott [1999] NSWCCA 434