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District Court 15 December 2021

R v Sines

[2021] NSWDC 698

Theft & propertyPublic order & justice offences
SENTENCE OFFENDER BROKE INTO EX PARTNER’S HOME AND STOLE PERSONAL ITEMS BUGMY PRINCIPLES PROSPECTS OF REHABILITATION

Citation: R v Sines [2021] NSWDC 698
Court: District Court of New South Wales
Date: 15 December 2021
Judge: Abadee DCJ

Background

The offender pleaded guilty to one count of aggravated break and enter with intent to commit a serious indictable offence, contrary to s 112(2) of the Crimes Act 1900 (NSW). On 1 January 2021, he broke into the Willmot home of his former partner, with whom he shares four children, while she, her new partner, and the children were present inside. The offence carried a maximum penalty of 20 years' imprisonment and a statutory non-parole period of five years.

Once inside, the offender crouched next to the sleeping victim in her bedroom before being discovered. A physical confrontation followed with the victim's partner, and the offender fled through a window. A gold watch and approximately $130 in cash were stolen during the incident.

The offender was arrested on 19 January 2021, having evaded police on an earlier occasion. He declined to be interviewed. He offered, as partial context for his actions, a belief that his eldest son was being abused by the victim's partner, though he acknowledged taking the wrong approach.

  • What was the appropriate objective gravity of the offence under s 112(2), where the underlying serious indictable offence was larceny?
  • To what extent did the offender's disadvantaged background, consistent with the principles in Bugmy v The Queen (2013) 249 CLR 571, reduce his moral culpability?
  • What weight should be given to the offender's lack of contrition and the assessed risk of reoffending when balancing the purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW)?
  • Did special circumstances exist warranting a departure from the standard non-parole period ratio?

Decision

Abadee DCJ assessed the offence as serious. Relying on R v Ponfield and R v Huynh, his Honour noted that the fact the underlying larceny carried only a five-year maximum did not place the offence at the lower end of the s 112(2) range. The known presence of occupants, including children, was the operative aggravating circumstance under s 105A(1)(f), and his Honour was satisfied the offender knew the premises were occupied.

The offender's culpability was assessed as diminished, though not eliminated, by reference to his deeply disadvantaged background. Psychological evidence from Ms Grujoska described antisocial behaviour attributable to childhood exposure to violence, removal from family, limited education, and drug use. These factors engaged the Bugmy principles, which recognise that a history of profound disadvantage can reduce moral culpability without excusing the conduct.

Notwithstanding that reduced culpability, his Honour identified factors pointing toward personal deterrence and accountability. The offender showed no genuine contrition and expressed a degree of satisfaction with the impact of his actions on the victims. General deterrence was also significant. The harm to the victim and her family, the need to vindicate their dignity, and community protection were accorded substantial weight. The Community Corrections Officer's assessment of a risk of reoffending was noted as a matter of concern.

His Honour accepted that special circumstances existed, primarily to support the offender's rehabilitation and reduce the risk of institutionalisation. A starting point of three years' imprisonment was reduced by 25 per cent to reflect the early guilty plea, producing a head sentence of two years and three months. The non-parole period was set at one year, one month, and 15 days, reflecting the finding of special circumstances.

Orders Made

  • The offender was convicted of breaking into and entering a dwelling house and committing larceny in circumstances of aggravation.
  • Sentenced to imprisonment for two years and three months, commencing 19 January 2021 and expiring 18 April 2023.
  • Non-parole period of one year, one month, and 15 days, expiring 5 March 2022, after which the offender became eligible for release.

Key Takeaways

  • A conviction under s 112(2) of the Crimes Act 1900 (NSW) is not automatically placed at the lower end of the gravity scale simply because the underlying serious indictable offence (here, larceny) carries a relatively modest maximum penalty.
  • Under the Bugmy principles, a sentencing court may reduce an offender's moral culpability where profound social disadvantage, including childhood removal from family, exposure to violence, and drug dependency, has contributed to the offending, even where the conduct itself is serious.
  • The District Court treated the victim's harm and dignity, community protection, and general deterrence as significant countervailing considerations, even where personal culpability was reduced.
  • An absence of genuine contrition, combined with an assessed risk of reoffending, weighs in favour of personal deterrence despite the operation of Bugmy principles.
  • Special circumstances were established on the facts, supporting a non-parole period below the statutory ratio in order to facilitate rehabilitation and limit the risk of institutionalisation.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 105A, 112
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5

Cases
- Bugmy v The Queen (2013) 249 CLR 571
- R v Huynh [2005] NSWCCA 220
- R v McNaughton (2006) 66 NSWLR 566
- R v Ponfield (1999) 48 NSWLR 327
- R v Todorovic [2008] NSWCCA 49