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District Court 9 October 2020

R v Harkins

[2020] NSWDC 823

Theft & property

Citation: R v Harkins [2020] NSWDC 823
Court: District Court of New South Wales
Date: 9 October 2020
Judge: Bennett SC DCJ

Background

The offender, aged 20 at the time of sentencing, appeared before the District Court to be sentenced for aggravated break and enter with intent to steal, contrary to s 113(2) of the Crimes Act 1900. The charge arose from an incident on 6 December 2019, when he entered a Dulwich Hill church premises containing a granny flat. The victim was asleep inside and woke when she heard the door open and footsteps, calling out before seeing the offender. The circumstance of aggravation was the presence of a person in the premises.

A second offence of breaking and entering a dwelling house with intent to steal (without the circumstance of aggravation, under s 113(1)) was placed on a Form 1, meaning the court took it into account in sentencing without imposing a separate penalty. In both offences, the intended serious indictable offence was larceny.

The offender had an extensive prior record. At the time of this offending, he was serving an intensive corrections order (a community-based alternative to full-time custody) that had been imposed for earlier aggravated break and enter offences. That order was subsequently revoked following this further misconduct.

  • What was the appropriate objective seriousness of aggravated break and enter where the intended offence was larceny, at the lower end of serious indictable offences?
  • How should the Form 1 offence affect the principal sentence?
  • Whether, and to what extent, pre-sentence custody should be credited, given the offender's incarceration arose from revocation of an intensive corrections order rather than from the present charges directly?
  • Whether special circumstances existed to justify extending the parole period beyond the statutory norm?
  • What weight should be given to the offender's subjective case, including prospects for rehabilitation, given the absence of sworn evidence from the offender himself?

Decision

Objective seriousness and the Form 1 offence

Bennett SC DCJ assessed the objective seriousness of the offending with reference to the intended offence being larceny, which sits at the lower end of the range of serious indictable offences. Nevertheless, the aggravating circumstance of a person being present in the premises was significant. The Form 1 offence required an uplift to the sentence that would otherwise have been imposed, reflecting the need for greater personal deterrence and the community's entitlement to retribution across both offences.

Guilty plea discount

The offender entered a plea of guilty in the Local Court and maintained it. This attracted a 25% discount on the sentence that would otherwise have been imposed, reflecting the utilitarian value of the early plea.

Pre-sentence custody and commencement date

The court declined to back-date the sentence to the date of arrest (1 January 2020). The period in custody since that date was attributable to revocation of the intensive corrections order for other offences, not to the present charges. Drawing on the discretion discussed in Callaghan v R [2006] NSWCCA 58, the court determined the sentence should commence on 1 June 2020, with some accumulation upon the sentence being served following revocation of the intensive corrections order.

Subjective case and rehabilitation

The court acknowledged the offender's youth and noted relevant subjective factors, including material from his grandmother, as informing findings about background and prospects. However, prospects for rehabilitation were assessed as guarded. The court observed, drawing on R v Qutami and Imbornone v The Queen, that unsworn out-of-court statements relied upon by an offender must be approached with appropriate care. The offender did not enter the witness box, which limited the weight the court could give to assertions of contrition and remorse. The court found special circumstances, warranting a longer-than-standard parole period to allow extended supervision.

Orders Made

  • The offender was convicted of aggravated break and enter with intent to steal (person present in premises), contrary to s 113(2) of the Crimes Act 1900.
  • Head sentence of 2 years and 10 months, commencing 1 June 2020.
  • Non-parole period of 1 year and 6 months, commencing 1 June 2020, expiring 30 November 2021.
  • Parole period of 1 year and 4 months, commencing 1 December 2021, expiring 1 March 2023.
  • Special circumstances found, justifying the extended parole period.

Key Takeaways

  • Where an intended serious indictable offence is larceny, sitting at the lower end of the spectrum of such offences, the District Court treated this as a relevant mitigating factor in calibrating objective seriousness for a break and enter charge.
  • A Form 1 offence does not attract a separate penalty but must produce a meaningful increase in the principal sentence, to reflect personal deterrence and community retribution for the totality of the conduct, consistent with the guideline in Attorney General's Application No. 1 of 2002.
  • Pre-sentence custody is not automatically credited where it arises from revocation of an earlier intensive corrections order rather than being directly referable to the offences being sentenced; the court retains a discretion over commencement of sentence in such circumstances.
  • Unsworn out-of-court statements advanced in mitigation, such as letters from family members, carry limited weight and must be approached with circumspection, particularly where the offender has not submitted to cross-examination on claims of remorse or rehabilitation.
  • Findings of special circumstances, which allow a longer parole period at the expense of the non-parole period, are available where the court considers extended post-release supervision to be warranted by the offender's circumstances and rehabilitation needs.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 113(1), 113(2)
- Crimes Act 1914 (Cth)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including Part 4 Division 1A, s 10A, s 37

Cases
- Attorney General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518
- Bugmy v R (2013) 249 CLR 571
- Callaghan v R [2006] NSWCCA 58
- Imbornone v The Queen [2017] NSWCCA 144
- Ponfield v R (1999) 48 NSWLR 347
- R v Henry (1999) 46 NSWLR 346
- R v Qutami [2001] NSWCCA 353