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District Court 9 November 2020

R v Mills; R v Smiroldo

[2020] NSWDC 919

Assault & violenceTheft & propertyFirearms & weaponsPublic order & justice offences

Citation: R v Mills; R v Smiroldo [2020] NSWDC 919
Court: District Court of New South Wales
Date: 9 November 2020
Judge: Buscombe DCJ

Background

Two offenders pleaded guilty to breaking and entering a dwelling house and committing the serious indictable offence of intimidation in circumstances of special aggravation, contrary to s 112(3) of the Crimes Act 1900 (NSW). The offence occurred in the early hours of 8 November 2019 at a home in Clarendon, where a group of five people had gathered after a night out at the Hawkesbury Races and the Clarendon Tavern.

At around 3.40am, the two offenders arrived dressed in black, wearing gloves and face coverings. One carried a gel-ball calibre repeating air pistol that had been painted black to resemble a conventional firearm. They forced their way in when a resident opened the back door, struck him in the head, and held the weapon to the back of his head while demanding money and asking for the whereabouts of the householder.

Over the course of the incident, the offenders threatened multiple occupants, slapped one person, and ransacked a bedroom. One occupant managed to call triple-0 from a locked bathroom, and police arrived approximately five minutes later, arresting both offenders on the spot. The weapon was found in one offender's back pocket.

  • What sentence was appropriate for each offender convicted under s 112(3) of the Crimes Act 1900 (NSW), which carries a maximum of 25 years imprisonment and a standard non-parole period of seven years?
  • Where did the offending sit on the spectrum of objective seriousness for this type of offence?
  • What departure, if any, from the standard non-parole period was warranted, having regard to the objective seriousness of the offence and each offender's subjective circumstances?
  • Whether any difference in sentence was justified between the two offenders, given their respective levels of involvement and subjective cases.

Decision

Buscombe DCJ assessed the objective seriousness of the offence as well below the mid-range, though not at the very bottom of the range. In reaching that assessment, the court noted several factors pointing to some planning: the coordinated disguise, gloves, and the presence of the air pistol. Against that, the court weighed the relative unsophistication of the execution, including that one occupant was permitted to leave freely, the householder recognised one offender by voice, and an occupant was allowed to use the bathroom, which enabled the police call.

The court noted that the serious indictable offence underlying the break-and-enter was intimidation, which itself carries a maximum of five years imprisonment. While some victims were genuinely frightened, others initially believed the weapon was a toy. The air pistol was not a conventional firearm, though it was classified as a pistol under the Firearms Act 1996 (NSW). The Crown did not press any specific aggravating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW), to avoid double-counting features already embedded in the offence category.

The court departed downward from the seven-year standard non-parole period, citing both the below-mid-range objective seriousness and findings of special circumstances in each offender's subjective case. A modest difference in sentence was imposed between the two offenders to reflect one offender's slightly greater involvement in the offence and the differing features of their respective subjective circumstances.

Orders Made

Mr Smiroldo:
- Convicted of the offence to which he pleaded guilty
- Sentenced to 3 years imprisonment, with a non-parole period of 18 months
- Sentence commences 8 November 2019; expires 7 November 2022
- Non-parole period expires 7 May 2021

Mr Mills:
- Convicted of the offence to which he pleaded guilty
- Sentenced to 3 years and 6 months imprisonment, with a non-parole period of 2 years
- Sentence commences 8 November 2019; expires 7 May 2023
- Non-parole period expires 7 November 2021

Key Takeaways

  • The District Court treated the use of a gel-ball air pistol that had been painted black as a relevant aggravating feature, even though it was not a conventional firearm, particularly because not all victims knew it was non-lethal at the time.
  • A significant downward departure from the seven-year standard non-parole period under s 112(3) was available where objective seriousness was assessed as well below mid-range and special circumstances were established on the subjective case.
  • Relative unsophistication in executing the offence, including allowing occupants to move freely during the incident and one offender being identifiable by voice, were factors the court treated as reducing objective seriousness.
  • Where two co-offenders are sentenced for the same offence, the court differentiated their sentences to reflect one offender's greater participation and differences in their individual subjective circumstances.
  • Under Bugmy v R (2013) 249 CLR 571 and Bullock v R [2016] NSWCCA 131, cited in this matter, the subjective background of an offender remains a relevant sentencing consideration alongside the objective features of the offence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(3) (break, enter and commit serious indictable offence in circumstances of special aggravation; maximum 25 years; standard non-parole period 7 years)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A
- Firearms Act 1996 (NSW)

Cases:
- Bugmy v R (2013) 249 CLR 571
- Bullock v R [2016] NSWCCA 131