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District Court 2 December 2020

R v Mati

[2020] NSWDC 863

Theft & property

Citation: R v Mati [2020] NSWDC 863
Court: District Court of New South Wales
Date: 2 December 2020
Judge: ML Williams SC DCJ

Background

The offender, a 23-year-old man of Samoan and Aboriginal heritage, pleaded guilty at an early stage to one count of aggravated break and enter in company and stealing, contrary to s 112(2) of the Crimes Act 1900. The offence carries a maximum penalty of 20 years imprisonment and a standard non-parole period of five years.

On 13 January 2020, the offender and a co-offender broke into a granny flat at a residential address in Arncliffe by removing a flyscreen and a pane of glass. The occupant observed both men leaving through the front gate carrying laptop bags, a handbag, and other items. Police later recovered all stolen property scattered in the surrounding area, and the items were returned to the victims.

The offender was on parole at the time of the offence, having served prior sentences for firearms offences and an earlier aggravated break and enter. He had been in custody since the date of the offence, 13 January 2020.

  • What was the appropriate sentence for aggravated break and enter in company and stealing, taking into account both aggravating and mitigating factors?
  • How should the standard non-parole period apply given the early plea, subjective circumstances, and level of objective seriousness?
  • Whether special circumstances warranted a departure from the otherwise applicable ratio between the non-parole period and the total sentence.
  • How should the offender's significant criminal history, drug addiction, traumatic background, and Aboriginal heritage be weighed in the sentencing exercise.

Decision

His Honour found the offending fell between the low and mid-range of objective seriousness. The element of aggravation was the presence of a co-offender. While the offence occurred in the victims' home, the court treated this as a factor of limited additional significance in the circumstances, noting it is commonly present in such offences. There was a limited degree of planning involved.

Several aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 applied: the offender's significant prior criminal record (including prior periods of imprisonment and a previous aggravated break and enter) and the fact that the offence was committed while on conditional liberty. The court accepted the Crown's submission that the offender's parole compliance history was poor and demonstrated a continuing disregard for parole conditions.

The primary mitigating factor was the early plea of guilty, attracting a 25% discount. The court considered substantial subjective material, including a psychologist's report, detailing the offender's traumatic brain injury at age 14, his diagnoses of Oppositional Defiant Disorder, ADHD, and Tourette's syndrome, and his lengthy history of alcohol and drug use beginning in childhood. His father's incarceration throughout his formative years and his lack of employment or structured support were also noted. While some remorse was expressed, the court found the offender lacked genuine insight into the impact of his offending, and his attempts to attribute blame to the co-offender were rejected.

The court found that special circumstances existed to a limited extent, justifying a longer parole period than the statutory norm. The primary reasons were the identified need for drug and alcohol rehabilitation, the risk of institutionalisation given his age and the frequency of his incarceration, and the absence of any formal drug or alcohol treatment during prior sentences.

Orders Made

  • The offender was convicted of the offence.
  • A sentence of 23 months imprisonment was imposed, commencing 13 June 2020, reflecting a 25% discount for the early plea of guilty.
  • A non-parole period of 16 months was set, expiring 12 October 2021.
  • Special circumstances were found.

Key Takeaways

  • The District Court applied the standard sentencing framework under the Crimes (Sentencing Procedure) Act 1999, weighing multiple statutory aggravating factors (prior record and commission of the offence on conditional liberty) against a meaningful early plea of guilty.
  • A significant criminal record does not automatically warrant the most severe available response; the court distinguished the offender's history from the level of irredeemable recidivism discussed in Veen v The Queen (No 2) (1988) 164 CLR 465.
  • Where an offender presents with a history of childhood drug and alcohol use, a traumatic background, limited education, and diagnosed psychiatric conditions, those matters bear on both moral culpability and the design of the sentence, particularly the length of the supervisory period.
  • Special circumstances findings remain available where the evidence discloses a genuine need for extended rehabilitation and supervision, particularly where an offender has had no prior access to drug and alcohol treatment programs.
  • Under R v Henry (1999) 46 NSWLR 346, a court may accept that extensive substance abuse from a young age diminishes an offender's capacity for appropriate judgment or choice, a factor relevant to the assessment of moral culpability without excusing the conduct.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(2)(d), 21A(2)(j)

Cases:
- Veen v The Queen (No 2) (1988) 164 CLR 465
- R v Henry (1999) 46 NSWLR 346
- R v Ponfield [1999] NSWCCA 435
- R v Qutami (2001) 127 A Crim R 369
- Imbornone v R [2017] NSWCCA 144