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District Court 9 August 2021

R v Nicholson

[2021] NSWDC 614

Fraud & dishonestyTheft & property

Citation: R v Nicholson [2021] NSWDC 614
Court: District Court of New South Wales
Date: 09 August 2021
Judge(s): Bennett SC DCJ

Background

The offender, a 39-year-old woman, appeared before the District Court for sentencing following a guilty plea entered in the Local Court to a charge of breaking and entering a workplace and committing a serious indictable offence, namely larceny in circumstances of aggravation, contrary to s 112(2) of the Crimes Act 1900. The maximum penalty for this offence is 20 years' imprisonment, with a standard non-parole period of five years.

The offence occurred on 29 July 2020 at a restaurant in Potts Point. CCTV footage showed the offender entering through an unlocked rear door off a laneway, where she stole a wallet containing cash, bank cards, and personal documents from one staff member's bag, and a house fob key and mailbox key from another staff member's backpack. The stolen bank cards were then used at two nearby tobacconists to obtain goods worth $95 and $73 respectively. The offender was arrested the following day after being identified from CCTV, and she admitted using the stolen cards but initially denied the break and enter.

The offender asked the court to take into account two additional offences under s 192E(1)(b) of the Crimes Act 1900 (obtaining financial advantage by deception through use of the stolen debit card) on a Form 1 when determining sentence. She had an extensive criminal record spanning more than 34 pages, dating back to age 15, and was subject to Community Correction Orders at the time of the offending.

  • Whether a guilty plea discount applied, given the plea was entered in the Local Court under the committal proceedings framework
  • What weight to give to the two Form 1 offences in sentencing
  • What effect the offender's criminal history, drug dependency, and demonstrated remorse should have on the sentencing exercise
  • Whether an adjournment under s 11 of the Crimes (Sentencing Procedure) Act 1999 was appropriate to allow the offender to undertake a residential rehabilitation program
  • Whether bail should be granted pending the adjourned sentencing hearing, and on what conditions

Decision

The court accepted that the offender was entitled to a guilty plea discount under s 25D(3)(a) of the Crimes (Sentencing Procedure) Act 1999, given the plea was entered in the Local Court. The court also noted that the offender had demonstrated appropriate contrition and remorse, accepting responsibility for the conduct despite initial denials in her police interview.

The offender's criminal record was described as extensive, with offending that had persisted since age 15 across a wide range of property, drug, and violence-related matters. The court observed that drug dependency had been a consistent driving factor behind her offending, and that she had spent approximately five years in custody over the preceding 18 years.

A sentence assessment report identified the offender as suitable for the Miruma diversionary program, a three-to-six month community-based residential program in Cessnock for female offenders with co-occurring mental health and substance abuse issues. The court considered this an appropriate rehabilitative opportunity and adjourned the sentencing proceedings to 11 November 2021 under s 11 of the Crimes (Sentencing Procedure) Act 1999 to allow the offender to undertake the program. The Local Court's earlier handling of breach findings in relation to the Community Correction Orders, where a s 10A order was applied without further penalty, was also noted as part of the offender's broader circumstances.

The court granted bail subject to stringent conditions, including residence at the Miruma program and compliance with all program directions. The bail conditions were detailed and included specific consequences if the offender was not accepted into or ceased to reside at the program.

Orders Made

  • Sentencing proceedings adjourned under s 11 of the Crimes (Sentencing Procedure) Act 1999 to 11 November 2021 at the Downing Centre District Court
  • Bail granted subject to the following conditions:
  • The offender is to be of good behaviour
  • The offender must appear on 11 November 2021 (or as otherwise directed)
  • Residence at Miruma diversionary program, 5 Alunga Avenue, Cessnock, until directed otherwise
  • Acceptance of Community Corrections supervision and compliance with all reasonable directions
  • Completion of the rehabilitation course at Miruma
  • Release directly into Corrective Services transport when a bed becomes available (12 August 2021), constituting a release requirement under s 29 of the Bail Act 2013
  • Not to leave Miruma except for compulsory program activities, reporting conditions, legal conferences, or court attendance
  • If the offender ceases to reside at Miruma or is not accepted into the program, she must report immediately to the nearest police station and notify the Sydney District Court registry

Key Takeaways

  • The District Court adjourned sentencing to allow a drug-dependent offender with an extensive record to undertake a residential rehabilitation program, exercising the discretion available under s 11 of the Crimes (Sentencing Procedure) Act 1999.
  • A guilty plea entered at the Local Court committal stage attracted a discount under s 25D(3)(a) of the Crimes (Sentencing Procedure) Act 1999, even though the matter was committed to the District Court for sentencing.
  • Under the Form 1 procedure, the court was asked to take into account two additional fraud offences when determining the principal sentence, reflecting the common practice of resolving related charges without separate convictions.
  • Demonstrated remorse and acceptance of responsibility, even where initial denials were made to police, remained relevant subjective considerations capable of influencing the sentencing exercise.
  • Stringent bail conditions, including mandatory residential placement and automatic reporting obligations upon any breach of program residency, can be fashioned to support rehabilitation while managing the risk posed by an offender with a lengthy custodial history.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 112(2), 192E(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 11, 25D(3)(a), Part 4 Div 1A
- Bail Act 2013 (NSW), s 29

Cases:
- Attorney General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518
- Bugmy v R [2013] HCA 37
- Imbornone v R [2017] NSWCCA 144
- Markarian v R [2005] HCA 25
- Muldrock v R [2011] HCA 39
- R v Henry [1999] NSWCCA 111
- R v Qutami [2001] NSWCCA 353
- Tepania v R [2018] NSWCCA 247
- The Queen v Osenkowski (1982) 5 A Crim R 394