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District Court 26 August 2021

R v Warrilow

[2021] NSWDC 631

Fraud & dishonestyTheft & property
CRIME STEAL PROPERTY IN DWELLING HOUSE AGGRAVATED ENTER DWELLING W ITH INTENT KNOWING PEOPLE THERE SENTENCING RELEVANT FACTORS ON SENTENCE

Citation: R v Warrilow [2021] NSWDC 631
Court: District Court of New South Wales
Date: 26 August 2021
Judge: Haesler SC DCJ

Background

The offender, a man born in 1990 with an extensive prior criminal history, appeared for sentencing on three serious charges arising from a series of offences committed in February 2020 in the Illawarra region. The offences involved approaching elderly victims in their homes under the guise of tradespeople or utility representatives, then using deception to steal cash or obtain access to bank accounts. All three victims were aged between 81 and 94 years old; two had dementia.

The first group of offences concerned an 87-year-old woman who was deceived at her door about the need to clean her solar panels. While she was distracted, the offender stole her wallet. He then called her pretending to be from her bank, and she provided account details that allowed him to withdraw $4,000. The second group of offences involved two further elderly victims in Wollongong and Mount Kembla, against whom the offender used fictitious bills and gutter-cleaning pretexts to extract cheques for cash. In one instance, $3,200 was recovered after a neighbour contacted a detective relative who arranged for the offender's vehicle to be stopped.

The offender entered guilty pleas in the Local Court and maintained those pleas at sentencing. He also asked the court to take into account two additional charges on a Form 1 (a mechanism under the Crimes (Sentencing Procedure) Act 1999 allowing related charges to be considered without separate sentences being imposed). He had been in custody on remand since 20 February 2020.

  • What aggregate sentence was appropriate for three serious dishonesty and property offences, accounting for the Form 1 matters?
  • How should the 25% statutory discount for early guilty pleas apply within an aggregate sentencing structure?
  • What weight should be given to the offender's criminal history, personal circumstances (including childhood trauma and substance abuse), and risk of reoffending?
  • Whether the COVID-19 pandemic warranted additional amelioration of sentence beyond the statutory utilitarian plea discount?
  • Whether an Intensive Corrections Order (ICO) was appropriate as an alternative to full-time custody?

Decision

Objective seriousness and the Form 1

His Honour found the offences to be objectively serious. They involved planning, cunning, and deliberate targeting of elderly and vulnerable people in their own homes. Although the amounts involved were modest compared to large-scale fraud matters, the court found they would have been significant to the victims personally, and that the conduct exploited the victims' goodwill and undermined public confidence in financial systems. The Form 1 matters were treated as substantial, not minor, consistent with the guideline in Attorney General's Application No 1 of 2002, and the court applied a meaningful increase to the sentence for the charge to which the Form 1 related.

Criminal history and personal circumstances

The offender's criminal record dated from the Children's Court and included a persistent and escalating pattern of dishonesty offences involving similar scams from 2014 onwards. He had been imprisoned before and had reoffended almost immediately after his parole period ended. His Honour acknowledged the offender's history of childhood trauma, diagnosed post-traumatic stress disorder, and engagement with drug and alcohol counselling, but noted that prior Drug Court appearances had not produced lasting change. Drawing on Veen v The Queen (No 2), the court held that the criminal history warranted more severe penalties, with heightened emphasis on retribution, deterrence, and community protection, while not producing a sentence disproportionate to the current offences.

COVID-19

His Honour acknowledged that the offender had served 18 months on remand under pandemic conditions. The court noted that while some jurisdictions apply additional weight to this factor, the NSW legislature has provided a specific statutory discount for the utilitarian value of an early guilty plea under s 25D of the Crimes (Sentencing Procedure) Act 1999, and Parliament had not amended those provisions to separately account for pandemic conditions. The court nonetheless considered the early plea holistically in synthesising the overall sentence.

Intensive Corrections Order refused

The court refused to impose an ICO. His Honour found that the offender's history of failure to comply with community-based orders, combined with the real and ongoing risk of reoffending, gave no confidence that an ICO would serve the interests of community safety. While acknowledging prosocial supports and the genuine need for psychiatric and drug rehabilitation, the court remained guarded about the offender's prognosis and held that full-time custody was required.

Orders Made

  • Count 1 (dishonestly obtain financial advantage by deception): indicative sentence of 2 years and 3 months
  • Count 2 (steal property from dwelling house): indicative sentence of 1 year and 1 month
  • Count 3 (aggravated enter dwelling with intent, taking into account Form 1 matters): indicative sentence of 2 years and 7 months
  • Aggregate sentence: 3 years and 6 months imprisonment
  • Non-parole period: 2 years and 1 month (reflecting a finding of special circumstances)
  • Parole period: 1 year and 5 months
  • Sentence to commence 20 February 2020 (date remand began)
  • Eligible for consideration for release to parole from 20 March 2022

Key Takeaways

  • Targeting elderly and cognitively vulnerable victims in their own homes, using persistence and premeditated deception, was treated as a significant aggravating feature warranting custodial penalties of meaningful length, even where the dollar amounts involved were relatively modest.

  • Under the guideline in Attorney General's Application No 1 of 2002, a Form 1 increase to account for additional dishonesty offences need not be token; the court confirmed that where the Form 1 matters are themselves substantial, a substantial increase is appropriate.

  • A pattern of similar prior offending, including prior imprisonment, supported heightened emphasis on personal deterrence, retribution, and community protection in fixing the sentence, consistent with the High Court's approach in Veen v The Queen (No 2), subject to the proportionality ceiling.

  • The NSW statutory scheme under s 25D of the Crimes (Sentencing Procedure) Act 1999 provides a fixed utilitarian discount for early guilty pleas; the District Court found this scheme did not require separate or additional adjustment for pandemic conditions beyond what Parliament had already legislated.

  • Refusing the ICO application, the court found that a sustained history of non-compliance and a real, ongoing risk of reoffending outweighed the availability of community-based supervision and rehabilitation supports.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 111(2), 148, 192E(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25D, 32 (Form 1)
- Criminal Procedure Act 1986 (NSW)

Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2013] NSWCCA 115; (2002) 56 NSWLR 146
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
- Donald (a pseudonym) v R [2021] NSWCCA 198
- Mandranis v R [2021] NSWCCA 97
- R v Lawrence (2005) NSWCCA 91
- R v Pullen [2018] NSWCCA 264
- Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14