Citation: R v Whitmore [2021] NSWDC 637
Court: District Court of New South Wales
Date: 8 October 2021
Judge: Bright DCJ
Background
The offender, a 34-year-old man, appeared for sentencing on one count of aggravated break and enter with intent to commit larceny, in circumstances involving the infliction of actual bodily harm, contrary to s 113(2) of the Crimes Act 1900 (NSW). The maximum penalty for the offence is 14 years imprisonment. A shoplifting offence was also taken into account on a Form 1 (a procedure that allows a court to acknowledge additional offences without convicting separately, which can increase the sentence for the principal offence).
The principal offence occurred on 10 September 2020 at a residential address in Lakehaven. The offender and an unidentified co-offender, both armed, confronted the victim on his front verandah. The offender grabbed the victim by the throat, forced him towards the front door, and entered the house while the co-offender threatened the victim with a knife. Inside, the offender ransacked the kitchen and lounge room and took the victim's mobile phone before fleeing. The victim suffered minor abrasions and cuts. DNA from a discarded facemask and from the victim's clothing identified the offender.
The offender was arrested on 16 September 2020 and had been held in custody since then, serving sentences for other matters during that period. He pleaded guilty at Wyong Local Court on 18 May 2021.
Legal Issues
- What was the appropriate assessment of the objective seriousness of the offence?
- Which statutory aggravating factors applied?
- What weight should be given to the offender's subjective circumstances, including his drug addiction, mental health history, and lengthy criminal record?
- Whether a 25% guilty plea discount was appropriate given the timing of the plea?
- Whether special circumstances existed justifying a variation of the standard ratio between non-parole period and parole period?
- How the Form 1 shoplifting offence should be reflected in the sentence?
Decision
Bright DCJ assessed the objective seriousness of the offence as falling in the middle of the range. Relevant factors included that the offender acted in company with an armed co-offender, that both were carrying weapons, that verbal threats to stab the victim were made, that physical force was used against the victim, and that the premises were ransacked and property damaged. The actual bodily harm sustained was at the lower end, consisting of minor abrasions and cuts.
Two statutory aggravating factors under the Crimes (Sentencing Procedure) Act 1999 (NSW) were established: the offender was on conditional liberty at the time of the offence (on bail for a larceny charge and a drug possession charge), and the offending took place in the victim's home.
On subjective circumstances, the court acknowledged the offender's lengthy criminal history dating from 2004, which included prior convictions for violent and break-and-enter offences. The court accepted, however, that the offender had a serious and longstanding drug addiction that contributed significantly to his offending, consistent with the principles in Bugmy v R (2013) 249 CLR 571 regarding the relevance of background disadvantage to moral culpability. The court also noted the offender had remained drug-free in custody and expressed genuine remorse.
The court found special circumstances existed, having regard to the offender's need for ongoing treatment for both drug addiction and mental health issues upon release. This justified extending the parole period beyond the standard ratio. A 25% discount was applied for the guilty plea, reducing the starting term of three years to a total sentence of two years and three months.
Orders Made
- The offender was convicted of aggravated break and enter with intent to commit a serious indictable offence, inflicting actual bodily harm, contrary to s 113(2) of the Crimes Act 1900 (NSW).
- Sentenced to imprisonment with a non-parole period of 1 year and 3 months, commencing 15 December 2020 and expiring 14 March 2022.
- Balance of term of 1 year, expiring 14 March 2023.
- Total term: 2 years and 3 months, commencing 15 December 2020 and expiring 14 March 2023.
- Special circumstances found; the non-parole period was reduced and the parole period extended accordingly.
- The Form 1 shoplifting offence was taken into account in the sentence.
Key Takeaways
- The District Court assessed the offence as mid-range in objective seriousness despite the presence of weapons and physical violence, principally because the actual bodily harm inflicted was minor.
- Two aggravating factors were established under the Crimes (Sentencing Procedure) Act 1999 (NSW): the offence occurred in the victim's home, and the offender was on conditional liberty at the time.
- Consistent with Bugmy v R, the sentencing court accepted that a serious and longstanding drug addiction was relevant to the offender's moral culpability, even where the offender carried a significant prior record of violent offending.
- Special circumstances were found where the offender's rehabilitation prospects depended on a longer period of supervised parole to address drug addiction and mental health issues, permitting a departure from the standard non-parole ratio.
- A 25% discount for a guilty plea entered at the Local Court stage reflects the court's application of the Crimes (Sentencing Procedure) Act 1999 (NSW) to reward early pleas, with the timing and utility of the plea being material to the discount applied.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 113(2), 117
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5(1)
Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999, No 1 of 2002 (2002) 56 NSWLR 146 (principles governing Form 1 offences)
- Bugmy v R (2013) 249 CLR 571; [2013] HCA 37 (relevance of background disadvantage and drug addiction to moral culpability on sentence)