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District Court 9 June 2021

R v Harper

[2021] NSWDC 528

Theft & property

Citation: R v Harper [2021] NSWDC 528
Court: District Court of New South Wales
Date: 9 June 2021
Judge: Bright DCJ

Background

The offender, a 23-year-old man, appeared for sentencing on one count of aggravated break and enter a dwelling in company, contrary to s 112(2) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is 20 years imprisonment, with a standard non-parole period of five years.

The offence occurred on 27 January 2020, when the offender and three co-offenders travelled to a residential property at Holgate on the Central Coast. After an earlier reconnaissance visit that afternoon, the offender forced open the front door of the occupied family home and stole property valued at over $14,000, including jewellery, watches, a laptop, and a safe containing passports. The victims returned home during the offence and found their property ransacked.

The offender pleaded guilty on 12 March 2021 at Gosford Local Court. At the time of sentencing, he was already serving an aggregate sentence of three years with a two-year non-parole period, and a called-up suspended sentence of 18 months, both running from 17 August 2020. He had also been on conditional liberty (a suspended sentence) at the time of the break and enter.

  • What was the appropriate assessment of the objective seriousness of the offence?
  • Which aggravating factors applied, including whether the offender was on conditional liberty and whether the offence was committed in the home of the victims?
  • What weight should be given to the offender's subjective circumstances, including mental health, youth, and disadvantaged background?
  • How should the new sentence relate to the existing sentences being served, having regard to the totality principle?
  • Whether special circumstances existed warranting a reduction of the non-parole period below the statutory ratio?

Decision

Bright DCJ assessed the objective seriousness of the offending as just below the middle of the range. Relevant factors included the degree of planning (the offender had visited the property earlier that day), that entry was gained by damaging the front door, that items were strewn across a bedroom, and that the offence was committed in company. The court noted that more serious aggravating features such as violence or deprivation of liberty were absent.

Two statutory aggravating factors were established: the offender was on conditional liberty at the time of the offence (serving a suspended sentence for assault occasioning actual bodily harm), and the offence was committed in the home of the victims. The court took into account the offender's difficult subjective background, including mental health issues and a history of disadvantage, consistent with the principles in Bugmy v The Queen (2013) 249 CLR 571, though these matters did not negate the need for both general and specific deterrence.

On the question of accumulation, the court found the offender had been dealt with leniently for the earlier offending. The court applied the totality principle and the principle from R v MAK; R v MSK (2006) 167 A Crim R 159 that the severity of accumulated sentences becomes more onerous and does not increase in a linear fashion. In that context, the court made the new non-parole period only partially cumulative on the existing sentence, rather than wholly cumulative.

Special circumstances were found, warranting a reduction in the non-parole period below the standard one-third ratio. The court identified two bases: the need for supervision and support upon the offender's eventual release into the community, and the fact that the sentence was partially cumulative on an existing term.

Orders Made

  • The offender was convicted of one offence of aggravated break and enter dwelling in company.
  • Sentenced to a total term of three years, comprising a non-parole period of 12 months commencing 17 May 2022 and expiring 16 May 2023, with a balance of parole of two years expiring 16 May 2025.
  • A 25% discount was applied to a starting term of four years, reflecting the utilitarian value of the guilty plea.
  • The court directed release to parole on 16 May 2023.
  • Special circumstances were formally found, reducing the non-parole period below the standard ratio.

Key Takeaways

  • The District Court assessed objective seriousness at just below the middle of the range for aggravated break and enter, taking into account the presence of planning and entry by force, while noting the absence of more serious features such as violence against the occupants.
  • Two statutory aggravating factors under the Crimes (Sentencing Procedure) Act 1999 were engaged: the offender's conditional liberty at the time of the offence and the fact the offence was committed in the victims' home.
  • Under Bugmy v The Queen, evidence of mental health difficulties and a background of disadvantage remained relevant to mitigating culpability, even where deterrence was also a significant sentencing consideration.
  • Where a new sentence is imposed on an offender already serving multiple sentences, the totality principle requires the court to ensure the overall sentencing outcome is not crushing, and the principle from R v MAK; R v MSK recognises that accumulating sentences become disproportionately burdensome.
  • Special circumstances permitting a reduced non-parole period can be established by a combination of factors, including the need for post-release supervision and the partially cumulative structure of the sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5(1), 54B(2)

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- R v MAK; R v MSK (2006) 167 A Crim R 159
- R v Ponfield (1999) 48 NSWLR 327