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District Court 17 June 2021

R v Pintley

[2021] NSWDC 413

Theft & property

Citation: R v Pintley [2021] NSWDC 413
Court: District Court of New South Wales
Date: 17 June 2021
Judge(s): M L Williams SC DCJ

Background

The offender, a 41-year-old man with approximately 12.5 years of prior full-time custody since 1999, appeared for sentencing on four counts of break, enter and steal arising from offences committed on 6 and 7 March 2020. Three counts were for aggravated break, enter and steal in company under s 112(2) of the Crimes Act 1900 (carrying a maximum of 20 years and a standard non-parole period of five years), and one count was for break, enter and steal under s 112(1)(a) (carrying a maximum of 14 years, no standard non-parole period).

The offences involved four separate small food and beverage businesses in the Sydney area. Three of the break-ins were committed in company with a co-offender, Joshua Tarpey, who had been adjourned for sentencing separately. The fourth was committed by the offender alone, using a key left in a lockbox beside the front door.

Sentencing was complicated by a further aggravated break and enter offence committed on 15 March 2020, for which the offender had already been sentenced on 18 March 2020 to a two-year fixed term. The court was therefore required to approach the exercise by considering what the total sentence would have been had all five offences been dealt with together.

  • What aggregate sentence was appropriate for the four offences, having regard to the totality principle and the separately imposed two-year fixed term for the related fifth offence?
  • How should the aggravating factor of offending while on conditional liberty (parole) be weighed against mitigating factors including the guilty plea and evidence of remorse and rehabilitation?
  • Whether special circumstances existed justifying a variation to the standard ratio between the non-parole period and the balance of the sentence under the Crimes (Sentencing Procedure) Act 1999.
  • Whether referral to the Compulsory Drug Treatment Correctional Centre was appropriate.

Decision

The court found each of the four offences fell below mid-range in objective seriousness, characterising them as typical offences of their kind, between low and mid-range. Some planning was involved, as the offenders brought implements to break in and prise open cash registers, and some property damage occurred at three of the four premises. The amounts stolen were modest ($2,000, $40, and $2,000 across the charged matters).

The offender's criminal history was extensive, spanning 27 pages and including approximately 24 break, enter and steal offences over 20 years. The court identified his offending while on parole as an aggravating factor, noting the added gravity where the conduct on parole mirrors the original offending. His history also placed significant doubt on rehabilitation prospects, which the court assessed as "guarded at best." Against this, the court accepted genuine remorse and meaningful progress within the Compulsory Drug Treatment Program, supported by a chaplain's reference and the evidence of a case coordinator. A 25% discount applied for the utilitarian value of the guilty plea.

Applying the totality principle, the court set an aggregate sentence of 3 years and 9 months, commencing 15 March 2020, with a non-parole period of 28 months. The court found special circumstances, warranting a longer period on parole than the statutory default to support the offender's ongoing rehabilitation and relapse prevention needs. The court also referred the offender to the Drug Court for continuation of the Compulsory Drug Treatment program.

On parity with the co-offender Tarpey, the court noted that no parity question arose at this stage as Tarpey had not yet been sentenced, but observed the two were equally culpable across the three s 112(2) offences.

Orders Made

  • Aggregate sentence of imprisonment of 3 years and 9 months, commencing 15 March 2020.
  • Non-parole period of 28 months, expiring 14 July 2022.
  • Special circumstances found.
  • Referral to the Drug Court for placement at the Compulsory Drug Treatment Correctional Centre.
  • Compensation orders:
  • $1,000 payable to the owner of Jin's Tea House (H146256502, Sequence 1).
  • $20 payable to the owner of Carinderia Restaurant (H77535286, Sequence 2).
  • $1,000 payable to the owner of No Fail Bubble Tea (H77535286, Sequence 5).

Key Takeaways

  • The District Court applied the totality principle by working backwards to determine what the aggregate sentence would have been had all five related offences been sentenced together, then calibrating the current sentence accordingly.
  • Breach of conditional liberty remains an aggravating factor regardless of the nature of the original offence, and its weight increases where the conduct during the parole period resembles the conduct for which the parole was granted.
  • A finding of special circumstances, justifying a proportionally shorter non-parole period, is available where the offender's addiction history and rehabilitation needs require an extended supervised period on parole.
  • Objective seriousness principally determines which sentencing alternative is adopted, with subjective circumstances then modulating the precise penalty within that framework, as confirmed by the Court of Criminal Appeal in R v Zamagias.
  • Sustained, verifiable engagement with a compulsory drug treatment program, supported by independent references, can be treated as genuine evidence of remorse and progress even where overall rehabilitation prospects remain guarded.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 112(1)(a), 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 11

Cases:
- Frigiani v The Queen [2007] NSWCCA 81
- R v Zamagias [2002] NSWCCA 17