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District Court 10 December 2020

R v Innes

[2020] NSWDC 878

Fraud & dishonestyTheft & property

Citation: R v Innes [2020] NSWDC 878
Court: District Court of New South Wales
Date: 10 December 2020
Judge: Buscombe DCJ

Background

The offender pleaded guilty to five offences of break, enter and steal under s 112(1) of the Crimes Act 1900 (NSW), each carrying a maximum penalty of 14 years' imprisonment. The offences were committed between August and November 2019 and targeted residential properties across metropolitan Sydney, including homes in Cabarita, Abbotsford, Epping, St Ives, and Kellyville.

Property stolen across the five offences included laptops, gaming consoles, jewellery, watches, cash, musical instruments, and personal identity documents. In several instances, victims returned home to find rooms ransacked and drawers rifled. Forensic evidence, including DNA from a bloodstain and a discarded water bottle, as well as fingerprint matches, linked the offender to the premises.

In addition to the five principal offences, 22 further offences were placed on a Form 1 to be taken into account on sentencing for the fourth offence. Twenty of those related to fraudulent use of a debit card taken during the fourth break and enter, involving small individual transactions under $100.

  • What aggregate sentence and non-parole period were appropriate for five offences of break, enter and steal, having regard to the objective and subjective circumstances?
  • What weight should be given to the Form 1 offences, particularly the 20 dishonest card-use offences, in fixing the sentence for the fourth offence?
  • Whether the offender was an appropriate candidate for referral to the Drug Court for a compulsory drug treatment order.

Decision

Buscombe DCJ imposed indicative sentences ranging from two and a half to three years for each of the five offences, reflecting their individual objective seriousness. The third, fourth, and fifth offences attracted the higher indicative terms of three years each, with the fourth offence further informed by the Form 1 matters.

On the Form 1 card-use offences, the court noted that the volume of offences (20 in total) required some upward impact on the sentence for the fourth offence, but that the small amounts of money involved limited that impact. This reflects the established principle that Form 1 offences must be taken into account, but their weight varies with their nature and gravity.

Applying the totality principle (the requirement that an aggregate sentence reflect the overall criminality without being crushing), the court arrived at an aggregate sentence of six years with a non-parole period of four years. The sentence was backdated to 4 November 2019, the date of the offender's remand in custody.

The court also exercised its power under s 18B of the Drug Court Act 1998 (NSW) to refer the offender to the Drug Court to assess his suitability for a compulsory drug treatment order, indicating that drug dependency was a relevant factor in the offender's circumstances.

Orders Made

  • The offender was convicted of five offences of break, enter and steal to which he had pleaded guilty.
  • An aggregate sentence of six years' imprisonment was imposed, with a non-parole period of four years.
  • The sentence commences on 4 November 2019 and expires on 3 November 2025; the non-parole period expires on 3 November 2023.
  • The offender was referred to the Drug Court pursuant to s 18B of the Drug Court Act 1998 (NSW) to determine whether a compulsory drug treatment order should be made.

Key Takeaways

  • The District Court applied the totality principle to arrive at an aggregate sentence considerably shorter than the sum of the five indicative terms, reflecting the requirement that a cumulative sentence not be disproportionate to the overall offending.
  • Form 1 offences must have some impact on the sentence for the principal offence to which they are attached, but the court's reasoning confirms that the degree of that impact is calibrated to the nature and value of the underlying conduct.
  • Under s 18B of the Drug Court Act 1998 (NSW), a sentencing court may refer an offender to the Drug Court for assessment of suitability for a compulsory drug treatment order, even where a custodial sentence is imposed for serious indictable offences.
  • Forensic evidence (DNA and fingerprints) played a central role in establishing the offender's connection to multiple premises, illustrating the evidentiary significance of trace evidence in property offence prosecutions.
  • A guilty plea to multiple offences of residential break and enter, involving systematic targeting of occupied family homes and the theft of personal and identity documents, resulted in an aggregate non-parole period of four years in this instance.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) s 112(1) (break, enter and steal; maximum 14 years' imprisonment)
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 3A (purposes of sentencing)
- Drug Court Act 1998 (NSW) s 18B (referral for compulsory drug treatment order)

Cases
- R v Ponfield (1999) 48 NSWLR 327
- TL v R [2017] NSWCCA 308
- Bugmy v R (2013) 249 CLR 571