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District Court 26 November 2020

R v Hunter

[2020] NSWDC 907

Theft & propertyTraffic & driving
CRIME SENTENCE DRIVE UNLICENSED

Citation: R v Hunter [2020] NSWDC 907
Court: District Court of New South Wales
Date: 26 November 2020
Judge(s): Bourke SC DCJ

Background

The offender, Mr John Hunter, appeared for sentencing on four offences committed across a period of roughly four weeks in late 2019 and early 2020. The offences included two counts of aggravated break and enter and commit a serious indictable offence knowing that persons were present, one count of aggravated enter with intent knowing persons were present, and one count of driving without ever having been licensed.

The three principal offences involved entering occupied residential premises in Western Sydney. In one instance, the offender entered a home while the elderly occupant was present but unaware, stealing cash, jewellery of sentimental value, and personal documents from an unlocked safe. In a second incident on Christmas morning, the offender entered a home through an open rear door while residents were asleep and stole car keys, then drove the vehicle away unlicensed. The third offence involved breaking a rear sliding door to enter a family home in the early hours of the morning while two young children and their parents were inside, and stealing the father's wallet.

The offender was arrested on 15 January 2020 and, at the time of arrest, was wearing shorts identified as having been taken from one of the victims' premises. He made detailed admissions to police regarding the Cranebrook break-in, admissions described in the agreed facts as essential to identifying him for that offence. Three additional matters were placed before the court on a Form 1 document to be taken into account on sentence: taking a vehicle without consent, resisting a police officer, and riding a bicycle without a helmet.

  • What sentences were appropriate for each of the three principal offences, having regard to the standard non-parole periods, the plea discount, and an additional discount under the principle in R v Ellis?
  • Whether an aggregate term of imprisonment was appropriate, and if so, what head sentence and non-parole period should apply?
  • Whether special circumstances existed justifying a departure from the statutory ratio between non-parole period and head sentence?
  • What weight should be given to the offender's personal circumstances, including his history of drug dependence, Indigenous background, and prospects of rehabilitation?

Decision

Bourke SC DCJ sentenced the offender following guilty pleas entered at an early stage, attracting a 25 per cent discount on the utilitarian value of the plea across all offences. For the sequence 5 offence (the Cranebrook break-in), an additional 15 per cent discount was applied under the Ellis principle, reflecting the significance of the offender's admissions to police without which he would not have been identified.

The court considered the offender's personal circumstances in depth. These included a troubled upbringing, a long history of substance abuse including ice and cannabis, and background matters relevant under the principles in Fernando, which address the sentencing of Aboriginal offenders and the role of social disadvantage. His prior criminal history was noted, as was the fact that he had previously benefited from findings of special circumstances. The court nonetheless found, notwithstanding his relapse in late 2019, that he retained reasonable prospects of rehabilitation and genuine potential to break the cycle of reoffending.

The court was satisfied that the section 5 threshold for full-time imprisonment was crossed and that no other penalty was appropriate. For the unlicensed driving offence, the court convicted the offender under section 10A of the Crimes (Sentencing Procedure) Act 1999 but imposed no further penalty.

An aggregate sentence was imposed for the three principal offences. The court made a finding of special circumstances, extending the period of parole supervision, citing the offender's need for a reasonably long period of post-release supervision to support rehabilitation. The indicative sentences for each offence were set out before the aggregate term was determined.

Orders Made

  • Sequence 1 (aggravated break and enter, 20 December 2019): indicative head term of 3 years 2 months; indicative non-parole period of 22 months
  • Sequence 5 (aggravated break and enter, 5 January 2020): indicative head term of 2 years 6 months; indicative non-parole period of 17 months
  • Sequence 8 (aggravated enter with intent, 25 December 2019): indicative head term of 2 years 7 months
  • Aggregate sentence imposed: head term of 4 years 3 months with a non-parole period of 2 years 6 months, both commencing 20 April 2020
  • Head sentence to expire 19 July 2024; non-parole period to expire 19 October 2022
  • Sequence 4 (drive unlicensed): convicted under section 10A, no further penalty imposed
  • Form 1 matters taken into account on the sequence 8 offence

Key Takeaways

  • The District Court applied the Ellis discount (an additional reduction beyond the standard plea discount) where an offender's admissions to police were essential to the prosecution establishing guilt for a particular offence, resulting in a combined 40 per cent discount for that count.
  • Under the Fernando principles, an offender's Aboriginal background and experience of social disadvantage are relevant to the sentencing exercise, though they do not operate as a mitigating factor in a straightforward sense; the court is required to consider these matters in assessing moral culpability and rehabilitation prospects.
  • A finding of special circumstances under the Crimes (Sentencing Procedure) Act 1999 is available even where an offender has previously received that benefit, provided the court identifies genuine reasons grounded in the current circumstances, such as a demonstrated need for extended post-release supervision.
  • Section 10A of the Crimes (Sentencing Procedure) Act 1999 permits a court to record a conviction for an offence without imposing any additional penalty, used here for the unlicensed driving charge.
  • Maximum penalties and standard non-parole periods function as guideposts in the sentencing exercise, not as targets or ceilings that mechanically determine the outcome.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), including ss 3A, 5, and 10A

Cases
- Palijan v The Queen [2010] NSWCCA 142
- R v Ellis (1986) 6 NSWLR 603
- Fernando and Ors (1992) 76 A Crim R 58
- Kentwell v The Queen (No. 2) [2015] NSWCCA 96