Citation: R v Hitch [2020] NSWDC 838
Court: District Court of New South Wales
Date: 3 November 2020
Judge: Bourke SC DCJ
Background
The offender broke into a private residence in South Windsor in January 2019 while armed with a black baton, in search of his domestic partner and an associated individual. He ripped a security screen door from its hinges, smashed glass panels in the front door, forced entry into the home, and used his baton to destroy property inside, all while making threats to return and cause harm. Two occupants were present throughout the incident, which lasted approximately two to three minutes.
The offender had been in a domestic relationship with a woman who had fled to the home earlier that day after an argument. The two occupants of the home had no prior connection to the offender and were going about their normal routine when he arrived uninvited.
The offender was arrested the following day and ultimately pleaded guilty to one count of aggravated break and enter and commit a serious indictable offence, namely intentional property damage, with the aggravating circumstance being his knowledge that persons were present inside the premises. The guilty plea was entered on the day after the trial was listed to commence, on an amended single-count indictment.
Legal Issues
- What was the appropriate sentence for aggravated break and enter with knowledge of occupants, having regard to the maximum penalty of 20 years and a standard non-parole period of five years?
- What discount applied to the sentence by reason of the guilty plea, given its late timing?
- What aggravating factors, beyond the statutory element of knowledge of occupants, were present?
- Whether special circumstances existed to justify varying the standard ratio between the head sentence and the non-parole period.
- How the principle of totality applied, given the offender had been serving sentences for other matters during part of the relevant custody period.
Decision
The District Court assessed the offence as above the lower range of objective seriousness but slightly below the midrange. Several aggravating features were identified under section 21A of the Crimes (Sentencing Procedure) Act 1999: the offender had armed himself with a baton beforehand, indicating a limited degree of planning; carrying the baton constituted possession of an offensive weapon; and the offence was committed inside the victims' home, which is not an element of the charge and therefore constitutes a separate aggravating circumstance. The court drew on Court of Criminal Appeal authority confirming that taking these additional circumstances into account did not constitute De Simoni error, and was careful not to treat the baton as a "dangerous weapon" within the meaning of the more serious offence under section 112(3).
The court noted that the underlying serious indictable offence, intentional property damage, carries a maximum of five years and sits at the lowest threshold of what qualifies as a serious indictable offence for these purposes. Mitigating factors included the offender's difficult childhood, mental health issues, and drug and alcohol problems, to which Bugmy v R principles applied. His criminal history was nonetheless significant, including prior offending of a similar nature.
A 5% utilitarian discount applied to reflect the guilty plea, given it came only at the point of trial. The court then found special circumstances, based on the need for a lengthy supervised period in the community following release, and varied the non-parole period below the standard ratio. Applying totality principles, the sentence was backdated to 20 October 2019 to account for the period the offender had already spent in custody.
Orders Made
- The offender was convicted of one count of aggravated break and enter and commit a serious indictable offence.
- Head sentence of three years and four months' imprisonment, commencing 20 October 2019 and expiring 19 February 2023.
- Non-parole period of two years, expiring 19 October 2021.
- Special circumstances found, varying the standard ratio between head sentence and non-parole period.
- Two related charges on the section 166 certificate (using a prohibited weapon and possessing a prohibited weapon) were withdrawn and dismissed.
Key Takeaways
- The District Court confirmed that arming oneself with a baton before committing a break and enter constitutes both a degree of planning and an independent aggravating factor under section 21A of the Crimes (Sentencing Procedure) Act 1999, even where the weapon falls short of a "dangerous weapon" as defined in the more serious tier of the offence.
- Committing the offence inside the victim's own home is an aggravating circumstance separate from the statutory element of knowledge of occupants, because it is not itself an element of the charge under section 112(2) of the Crimes Act 1900.
- Under the principles in Bugmy v R, evidence of a deprived background and ongoing mental health and substance issues can reduce moral culpability, though those factors do not override the need for general deterrence in offences involving home invasion.
- A guilty plea entered the day after trial was listed, on an amended indictment, attracted only a 5% utilitarian discount, reflecting the limited utilitarian value of a plea at that stage of proceedings.
- Where an offender has served custodial periods across multiple concurrent and consecutive sentences during a remand period, totality principles inform the court's discretion to backdate the sentence to avoid an outcome that would extinguish any realistic prospect of rehabilitation.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A
- Crimes Act 1900 (NSW), ss 112(2), 112(3)
Cases
- Bugmy v R [2013] HCA 37
- Mapp v R (2010) 206 A Crim R 497
- Marshall v R [2007] NSWCCA 24
- Palijan v R [2010] NSWCCA 142
- R v Bennett [2014] NSWCCA 197
- R v Li (unreported, NSWCCA, 9 July 1997)
- R v Ponfield (1999) 48 NSWLR 327