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District Court 12 March 2021

R v Polkinghorne

[2021] NSWDC 155

DrugsTheft & property
CRIME SENTENCE BREAK ENTER AND STEAL

Citation: R v Polkinghorne [2021] NSWDC 155
Court: District Court of New South Wales
Date: 12 March 2021
Judge(s): Bourke SC DCJ

Background

The offender faced sentencing on five counts of break, enter and steal under s 112(1)(a) of the Crimes Act 1900, with a further five offences on a Form 1 document to be taken into account. The offences were committed between May and November 2019, targeting pharmacies and jewellery stores in shopping centres in the Hills District of Sydney.

The offences shared a common method: the offender accessed premises by cutting through sheet metal roofing and entering through ceiling cavities, typically in the early hours of the morning. Stolen property included Schedule 8 drugs (such as Oxycontin, Morphine and Endone) from a pharmacy, and jewellery with a combined claimed retail value running into the hundreds of thousands of dollars. Several stores were targeted on more than one occasion.

The offender pleaded guilty at the earliest opportunity. Evidence before the court established a long-term dependency on prohibited drugs, which the sentencing judge identified as connected to the offending pattern.

  • What aggregate sentence was appropriate for five offences of break, enter and steal, with five further offences on a Form 1?
  • What discount should apply to reflect an early guilty plea?
  • Whether special circumstances existed to justify a departure from the standard ratio between the non-parole period and the head sentence.
  • Whether the offender met the criteria for referral to the Compulsory Drug Treatment Program.

Decision

Bourke SC DCJ allowed a 25% discount across all offences to reflect the utilitarian value of the early guilty plea. The maximum penalty of 14 years imprisonment for each offence was noted as a relevant guidepost, consistent with the sentencing court's obligation to anchor its assessment to that benchmark.

Indicative sentences were set for each of the five principal offences. After applying the guilty plea discount, those ranged from two years three months (for the pharmacy break-in) to three years (for the most serious jewellery store offence, which carried the Form 1 matters). The judge then reduced the aggregate sentence to reflect the totality principle, which requires that the combined sentence not be disproportionate to the overall criminality when multiple offences are sentenced together.

A finding of special circumstances was made, allowing the non-parole period to be set at a lower proportion of the head sentence than the statutory default. The primary basis was the importance of an extended period of parole supervision given the significant rehabilitation steps the offender had already taken.

The court was also satisfied that the offender met all criteria for referral to the Drug Court for consideration of the Compulsory Drug Treatment Correctional Centre program, including the requirement that the total sentence not exceed six years and that the offending be related to a long-term drug-dependent lifestyle.

Orders Made

  • Aggregate head sentence of five years and nine months imprisonment, commencing 8 January 2020 and expiring 7 October 2025.
  • Non-parole period of three years and six months, expiring 7 July 2023.
  • Special circumstances found, justifying a reduced non-parole period relative to the head sentence.
  • Referral to the Drug Court for consideration of entry into the Compulsory Drug Treatment Correctional Centre program.
  • Direction that the report of Dr Richard Furst (dated 27 February 2021) be provided to the Drug Court, Corrective Services, and Justice Health.

Key Takeaways

  • The District Court applied a 25% guilty plea discount where the offender entered his plea at the earliest opportunity, treating that utilitarian value as a significant mitigating factor across all five offences.
  • Under the totality principle, an aggregate sentence will reflect something less than the sum of all indicative sentences where an offender is being sentenced for multiple separate offences simultaneously.
  • A finding of special circumstances can be grounded in rehabilitation prospects where evidence demonstrates meaningful steps toward addressing the underlying causes of offending, here a long-term drug dependency.
  • Referral to the Compulsory Drug Treatment Program requires satisfaction of several criteria, including a total sentence not exceeding six years, an unexpired non-parole period of at least 18 months, residence in the broader Sydney region, and a demonstrated connection between long-term drug dependency and the offending conduct.
  • The indicative sentencing framework, where a court announces individual indicative sentences before announcing the operative aggregate, reflects the structure required by the Crimes (Sentencing Procedure) Act 1999 for aggregate sentencing.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(1)(a) (break, enter and steal; maximum penalty 14 years)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Ponfield v R (1999) 38 NSWLR 327 (totality principle in aggregate sentencing)