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District Court 22 October 2020

R v Johnson

[2020] NSWDC 820

Theft & property
CRIME SENTENCE BREAK ENTER AND STEAL SPECIAL CIRCUMSTANCES EXTENSIVE CRIMINAL HISTORY INSTITUTIONALISED

Citation: R v Johnson [2020] NSWDC 820
Court: District Court of New South Wales
Date: 22 October 2020
Judge: Norrish QC DCJ

Background

The offender, David John Johnson, appeared for sentence on a charge of breaking, entering and stealing under s 112(1) of the Crimes Act 1900, arising from a residential burglary at Kiama committed in February 2006. A more serious charge of aggravated breaking, entering and stealing had been withdrawn at the Local Court. The offender pleaded guilty at the Local Court and was committed to the District Court for sentence.

The offence was committed approximately 15 years before sentencing, and the offender had since fled to Western Australia, where he was arrested and extradited to New South Wales in June 2020. At the time of the Kiama offence, he was subject to three concurrent forms of conditional liberty: parole from a prior sentence for escape and breaking and entering, a suspended sentence for common assault, and a s 9 bond for assaulting a police officer.

The offender had an extensive criminal history and was assessed by the court as heavily institutionalised. He had described prison as feeling like "my home."

  • What sentence was appropriate for a break, enter and steal offence committed while the offender was on three separate forms of conditional liberty?
  • Whether a 25% discount for the guilty plea was warranted given its utilitarian value.
  • Whether "special circumstances" existed under s 44 of the Crimes (Sentencing Procedure) Act 1999 justifying a reduced non-parole period relative to the total sentence.
  • How to date the sentence, taking into account time served in Western Australia and the balance of parole being served.
  • Whether an Intensive Correction Order or referral to the Drug Court for a Compulsory Drug Treatment Order was available and appropriate.
  • How to avoid "double-dipping" when treating the breach of conditional liberty as an aggravating factor while also making the sentence at least partially cumulative on the parole balance.

Decision

Norrish QC DCJ sentenced the offender to two years and three months imprisonment, with a non-parole period of 12 months. The sentence was dated from 16 July 2020, giving credit for the period spent in custody in Western Australia from 16 June 2020 and for part of the parole balance served in New South Wales. His Honour found special circumstances under s 44 of the Crimes (Sentencing Procedure) Act, reducing the non-parole period below the statutory default ratio to allow for an extended period of supervised release, given the offender's deep institutionalisation and rehabilitation needs.

A 25% discount was applied to reflect the utilitarian value of the guilty plea. Objectively, the court assessed the offence as below the middle range of seriousness for its class: the offending was not professionally executed, the property stolen was modest in total value (though significant to the elderly victims), and the manner of commission, while calculated, did not reflect the most serious examples of the offence type.

The breach of three separate forms of conditional liberty was identified as a significant aggravating factor under s 21A(2) of the Crimes (Sentencing Procedure) Act. Consistently with Callaghan v R [2006] NSWCCA 58, the court was careful not to "double-dip" by both treating the conditional liberty breach as an aggravating factor and then commencing the sentence fully cumulatively on the parole balance. His Honour resolved this by commencing the sentence one month into the two-month-and-23-day parole balance, rather than from its expiry.

The court declined to impose an Intensive Correction Order, finding that option inconsistent with the nature of the offending and the offender's criminal history. His Honour also explored the possibility of a referral to the Drug Court for a Compulsory Drug Treatment Order under the Drug Court Act, but was advised that such a referral was not available from the Wollongong District Court, a jurisdictional anomaly the court noted with evident frustration.

Orders Made

  • Sentenced to imprisonment for two years and three months, commencing 16 July 2020.
  • Non-parole period of 12 months, expiring 15 July 2021.
  • Balance of sentence of one year and three months, during which the offender would be subject to parole.
  • Special circumstances found under s 44 of the Crimes (Sentencing Procedure) Act 1999.
  • Intensive Correction Order refused.
  • Referral to Drug Court for Compulsory Drug Treatment Order declined (jurisdictional limitation).

Key Takeaways

  • The District Court confirmed that committing an offence while subject to multiple concurrent forms of conditional liberty (parole, a suspended sentence, and a recognisance bond) constitutes a significant aggravating factor, capable of compounding in weight across each separate breach.
  • Where both breach of conditional liberty and cumulation on a parole balance arise together, Callaghan v R [2006] NSWCCA 58 requires a court to be alert to "double-dipping"; the solution here was partial rather than full cumulation on the outstanding parole balance.
  • A finding of special circumstances under s 44 of the Crimes (Sentencing Procedure) Act was supported by the offender's severe institutionalisation and entrenched drug dependency, consistent with the principle in R v Todd (1982) 2 NSWLR 517 that offenders with limited experience outside custodial settings may require a longer supervised release period.
  • Under the Todd principles and Bugmy v R [2013] HCA 37, a deprived or disadvantaged background and resulting institutionalisation remain relevant to the sentencing exercise, even where an extensive criminal history is present.
  • Geographic limitations on referrals to the Drug Court meant that a Compulsory Drug Treatment Order was unavailable in the Wollongong District Court, a restriction Norrish QC DCJ noted as anomalous given the availability of the same program to courts sitting in Sydney.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 12, 21A(2), 44
- Drug Court Act 1998 (NSW), pt 2A

Cases
- Bugmy v R [2013] HCA 37
- Callaghan v R [2006] NSWCCA 58
- Harris v R [2005] NSWCCA 204
- Moffitt v R (1990) 20 NSWLR 114
- R v Henry (1999) 46 NSWLR 346
- R v Osenkowski (1982) 5 A Crim R 394
- R v Ponfield (1999) 48 NSWLR 327
- R v Todd (1982) 2 NSWLR 517