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District Court 22 July 2021

R v Hill

[2021] NSWDC 333

Theft & property
CRIME BREAK, ENTER & STEAL ATTEMPT BREAK & ENTER MULTIPLE OFFENCES SENTENCING RELEVANT FACTORS ON SENTENCE ON PAROLE FOR SIMILAR OFFENCES

Citation: R v Hill [2021] NSWDC 333
Court: District Court of New South Wales
Date: 22 July 2021
Judge(s): Haesler SC DCJ

Background

The offender pleaded guilty in the Local Court to five counts of Break, Enter and Steal and one count of Attempted Break and Enter under s 112(1) of the Crimes Act 1900, each carrying a maximum penalty of 14 years imprisonment. He also asked the court to take into account a further seven offences on Forms 1 (a procedural mechanism allowing related charges to be considered at sentencing without separate conviction), including additional attempted break and enter charges, a break and enter charge, and a dealing in suspected proceeds of crime charge.

The offences were committed across four separate nights between April and June 2020, targeting small businesses in the Kiama area, including hairdressing salons, cafes, restaurants, clothing stores, and a spa. Property taken was relatively modest in value, though damage to premises was often significant, with one clothing store sustaining approximately $6,500 in damage. The offender was arrested on 29 June 2020 and remained in custody from that date.

Critically, the offender was on parole at the time of all offending, having been released from a sentence previously imposed by the same judge. His parole was subsequently revoked. He had a long criminal history that included prior break and enter offences, and the court described him as an institutionalised offender who had never lived a normal life in the community.

  • What aggregate sentence was appropriate for multiple break and enter offences committed while on parole, with a lengthy criminal history?
  • How should the Court of Criminal Appeal's guideline judgment in Ponfield v R apply to the objective seriousness of these offences?
  • How should the Form 1 offences affect the sentences for the two principal charges to which they were attached?
  • How should the principles of accumulation and concurrence be applied to arrive at a just aggregate sentence, while preserving the 25% guilty plea discount?
  • What weight should be given to the offender's drug dependency, mental health conditions, and prospects of rehabilitation?

Decision

Haesler SC DCJ assessed objective seriousness by reference to the guideline judgment in Ponfield, noting that the absence of aggravating features (such as dire or substantial harm to victims) placed the offending in a less serious category within the broad range of s 112 offences. The court acknowledged that the felonies involved were not among the more serious ones, and the amounts taken were relatively modest. However, the court emphasised that break and enter offences are crimes against people, not merely property, and carry significant personal and economic consequences for business owners.

The court applied a 25% reduction across all sentences to reflect the utilitarian value of early guilty pleas entered in the Local Court. The Form 1 offences attached to Sequences 3 and 12 operated to increase the sentences for those counts, consistent with the approach in Attorney General's Application No 1 and Grube v R. The court applied the instinctive synthesis method endorsed in Markarian, weighing all relevant factors together rather than mechanically adjusting figures.

In assessing the offender's personal circumstances, the court acknowledged longstanding drug dependency, mental health conditions, and the broader context of a deprived background as described in Bugmy v The Queen. While the offender's prospects of rehabilitation were poor, the court did not abandon them entirely. The court expressed serious concern that without structured transitional support, including residential drug rehabilitation, the offender would reoffend upon release. The court noted the matter of whether such a programme would be provided would be for the State Parole Board to determine.

Applying the principles of accumulation and concurrence, the court structured the individual sentences so that they were partly cumulative, arriving at an aggregate sentence that was a just and appropriate measure of the total criminality involved, while ensuring the guilty plea discount was not eroded through the accumulation process.

Orders Made

  • Sequence 1 (Attempted Break and Enter): 9 months imprisonment
  • Sequence 3 (Break, Enter and Steal, including Form 1 matters): 3 years imprisonment
  • Sequence 7 (Break, Enter and Steal): 2 years imprisonment
  • Sequence 10 (Break, Enter and Steal): 2 years imprisonment
  • Sequence 12 (Break, Enter and Steal, including Form 1 matters): 2 years and 7 months imprisonment
  • Sequence 13 (Break, Enter and Steal): 1 year and 10 months imprisonment
  • Aggregate sentence: 6 years imprisonment, commencing 29 October 2020
  • Non-parole period: 3 years and 6 months
  • Parole period: 2 years and 6 months, commencing 29 April 2024 and expiring 28 October 2026
  • Eligible for consideration for release to parole on 28 April 2024

Key Takeaways

  • The District Court confirmed that the Ponfield guideline judgment remains a central reference point for sentencing break and enter offences, with the absence of aggravating features relevant to placing offences within the range, even if it does not operate as a mitigating factor in itself.
  • A lengthy criminal history including similar prior offending justifies a more severe sentence focused on retribution, personal deterrence, and community protection, consistent with Veen v The Queen (No 2), provided the sentence remains proportionate to the gravity of the current offences.
  • Offending while on parole for similar offences constitutes a breach of an implicit promise of good behaviour and is a significant aggravating consideration in fixing the appropriate sentence.
  • Form 1 matters can substantially increase the sentences for the counts to which they are attached, particularly where personal deterrence and retribution call for additional weight.
  • Where an offender is institutionalised and has never lived a normal community life, the court may express the view that structured transitional support, such as residential drug rehabilitation, is essential to any realistic prospect of rehabilitation upon release, though the decision on such arrangements rests with the State Parole Board.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(1)
- Criminal Procedure Act 1986 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25D(2)(a), 42A

Cases
- Attorney General's Application No 1 [2002] 56 NSWLR 146
- Bugmy v The Queen (2013) 249 CLR 571
- Cahyadi v Regina [2007] NSWCCA 1
- Devaney v R [2012] NSWCCA 285
- Grube v R [2005] NSWCCA 140
- Markarian v The Queen (2005) 228 CLR 357
- Ponfield v R [1999] NSWCCA 435; 48 NSWLR 327
- Postiglione v The Queen (1997) 189 CLR 295
- R v Hayes (1984) 1 NSWLR 740
- R v JDX; JDX v R [2017] NSWCCA 9
- R v Knight (2005) 155 A Crim R 252
- R v M.A.K. & R v M.S.K. [2006] NSWCCA 381
- R v Maher [2004] NSWCCA 177
- R v Scott [1999] NSWCCA 434
- Ryan v R [2017] NSWCCA 209
- Veen v The Queen (No 2) (1988) 164 CLR 465