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District Court 20 May 2021

R v Baldwin-Crescente

[2021] NSWDC 255

Theft & property
CRIME PROPERTY OFFENCES CIRCUMSTANCES OF AGGRAVATION

Citation: R v Baldwin-Crescente [2021] NSWDC 255
Court: District Court of New South Wales
Date: 20 May 2021
Judge(s): Buscombe DCJ

Background

The offender, a 27-year-old male with a significant criminal history, pleaded guilty to three offences arising from events on 21 March 2020 in Botany. The principal offence was aggravated break and enter under section 112(2) of the Crimes Act 1900 (NSW), carrying a maximum penalty of 20 years imprisonment and a standard non-parole period of five years. The aggravating circumstance was that the offender knew a person was present in the dwelling at the time.

Shortly before 4.30am, the offender and at least three others gained access to a residential apartment block and forced their way into the bedroom where the victim and her partner were asleep. The offender wrestled with the victim's partner, smashed wardrobe doors, and demanded to know where drugs were kept. The victim, who remained alone in the bedroom for the duration of the incident, was described in the agreed facts as terrified. The group left after approximately 15 minutes when warned that police were coming.

Following arrest outside the building shortly after the incident, the offender broke free from handcuffs using an angle grinder and fled on foot, giving rise to the additional offences of escape from lawful custody and intentional damage to police property. All three offences proceeded to sentencing on a guilty plea entered in the Local Court. The offences were committed while the offender was on parole for a prior armed robbery.

Legal Issues

  • What was the appropriate objective seriousness of the aggravated break and enter offence, including the applicable aggravating factor of being committed in company?
  • How should the offender's significant criminal history, commission of the offences while on parole, and poor engagement with prior supervision bear on the sentence?
  • To what extent did the offender's chronic drug addiction, mental health conditions, and early life of social disadvantage reduce his moral culpability?
  • Whether a finding of special circumstances was warranted so as to extend the parole period beyond the statutory ratio.
  • Whether an intensive correction order was appropriate given the offender's risk profile.

Decision

Objective Seriousness

The court assessed the aggravated break and enter as falling below the mid-range of objective seriousness, but not at the bottom of the range (at [33]). The offence occurred in the early hours of the morning at a home where the victim and her partner had retired for the night, the offender participated in forcing entry to the locked bedroom, and the group remained inside for approximately 15 minutes before leaving only when alerted to police attendance (at [30]-[32]). The court accepted the Crown's submission that the statutory aggravating factor of committing the offence in company was made out, on the basis that the combined presence of the group conveyed a threat of violence to the victim (at [34]-[35]). The court found the offender's role was less serious than that of his co-offenders, consistent with the Crown's concession (at [32]).

Criminal History and Commission on Parole

The offender's criminal history, dating back to age 15 and including armed robbery and assault with intent to rob, disentitled him to leniency (at [36]). The current offences were committed while the offender was on parole for an armed robbery sentence imposed in 2017, which constituted a statutory aggravating factor (at [37]). His prior engagement with Community Corrections supervision was described as poor, with multiple breach reports submitted to the State Parole Authority (at [55]).

Addiction, Mental Health and Social Disadvantage

The court accepted unchallenged psychological evidence that the offender had experienced a childhood of considerable social disadvantage, including exposure to parental drug use from an early age, physical abuse, alleged sexual abuse in juvenile detention, and exclusion from school (at [40]-[53]). While drug use is not ordinarily a mitigating factor, the court accepted that the offender's addiction had its origins in those circumstances of childhood deprivation and trauma, warranting some reduction in his moral culpability (at [64]-[65]). The court also found that the offender's mental health conditions meant that time in custody would be more onerous for him than for a person without those conditions (at [66]). The court did not find that his mental health was causative of the offending (at [66]).

Special Circumstances and Intensive Correction Order

A finding of special circumstances was made, resulting in a departure from the standard non-parole period ratio, given the offender's mental health and drug addiction and his significant need for community-based support upon release (at [67]). The court declined to impose an intensive correction order. Given the offender's criminal record, the commission of these offences on parole, and his demonstrated inability to engage with supervision, the court was not satisfied that community safety would not be compromised by a non-custodial sentence (at [76]).

Sentence

A 25% discount was applied for the utilitarian value of the guilty plea entered in the Local Court (at [60]). The court used the aggregate sentencing regime and set the commencement date at 21 May 2020, having regard to the principles of totality and the fact that the offender had been bail-refused on the current charges (at [69]). The only appropriate sentence was full-time imprisonment (at [72]).

Orders Made

  • Aggregate sentence of three years imprisonment imposed with a non-parole period of 18 months.
  • Sentence commences 21 May 2020 and expires 20 May 2023.
  • Non-parole period expires 20 November 2021.

Key Takeaways

  • The District Court confirmed that where an offence is committed in company, the statutory aggravating factor under section 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) is made out when the combined presence of co-offenders conveys a threat of violence to the victim, even where a particular participant's individual role is assessed as less serious than others in the joint enterprise (at [34]-[35]).

  • Under the joint criminal enterprise doctrine, each participant bears criminal liability for all acts carried out in furtherance of the enterprise, but the sentencing court must still assess the culpability of each participant by reference to that individual's own conduct (at [29]-[32]).

  • Drug addiction is not ordinarily a mitigating factor in sentencing, but a reduction in moral culpability may be available where the addiction has its origins in childhood social disadvantage, deprivation, or trauma, consistent with the principles discussed in R v Henry and Hayek v R (at [63]-[65]).

  • Social disadvantage in early life, assessed in accordance with Bugmy v R (2013) 249 CLR 571, can reduce an offender's moral culpability, even where no direct causal link is established between the offender's mental health conditions and the commission of the offence (at [66]).

  • Commission of an offence while on parole, combined with a demonstrated inability to engage with supervision and a high assessed risk of reoffending, are factors weighing significantly against the imposition of an intensive correction order even where the aggregate sentence falls within the eligible range (at [76]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(2)
- Criminal Procedure Act 1986 (NSW), s 166
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A, s 3A

Cases
- R v Ponfield (1999) 48 NSWLR 327
- TL v R [2017] NSWCCA 308
- Pehar v R [2020] NSWCCA 118
- R v Henry (1999) 46 NSWLR 346
- Hayek v R [2016] NSWCCA 126
- Bugmy v R (2013) 249 CLR 571