AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 10 December 2021

R v Hardy

[2021] NSWDC 781

Theft & property
CRIME SENTENCE BREAK ENTER AND STEAL BREAK ENTER WITH INTENT TO STEAL

Citation: R v Hardy [2021] NSWDC 781
Court: District Court of New South Wales
Date: 10 December 2021
Judge: Bourke SC DCJ

Background

The offender, a man who was staying in public housing in Ashfield at the time, appeared for sentence on four offences committed over five days in December 2020. Three charges were brought under s 112 of the Crimes Act 1900 (break, enter and steal), and one under s 113 (break and enter with intent to steal). The offences targeted residential premises in Campsie, Burwood (twice), and Dulwich Hill.

The offences were linked to the offender through DNA evidence, fingerprint matching, CCTV footage, and items recovered from his room at Wesley Mission Housing. Property stolen across the offences included jewellery, cameras, watches, cash in Australian and Chinese currency, and other personal items. The fourth offence was interrupted when the occupants woke and confronted the offender through the window, causing him to flee.

The offender pleaded guilty at an early stage, admitted to selling some of the stolen property, and gave police limited admissions on arrest. He was already serving the remainder of a 12-year sentence (imposed in 2013) following revocation of parole, which had been revoked solely because of these offences.

  • What sentence was appropriate for each of the four break-and-enter offences, taking into account a 25% discount for early guilty pleas?
  • How should the principles of totality and accumulation apply across four discrete instances of offending?
  • Whether, and to what extent, the sentence should be backdated given that the offender's parole had been revoked as a direct result of these offences?
  • What action, if any, should be taken in relation to the breached Community Correction Order?

Decision

His Honour applied a 25% discount to each indicative sentence, reflecting the utilitarian value of the early guilty pleas. The indicative head sentences were: two years six months for the 9 December offence, two years four months for the 10 December offence, two years six months for the 11 December offence, and two years two months for the 13 December offence.

Turning to totality, His Honour stepped back from the individual indicative sentences to assess what overall penalty was appropriate. The totality principle required the court to avoid a combined sentence that would crush any realistic prospect of rehabilitation, while also recognising that the four offences were separate and distinct acts of criminality warranting some degree of accumulation.

His Honour imposed a head sentence of four years three months with a non-parole period of two years ten months. Having regard to the fact that the offender's parole under the earlier 12-year sentence was revoked solely because of these offences, the sentence was backdated by approximately four months to 10 August 2021. The head sentence was therefore set to expire on 9 November 2025, with the non-parole period expiring on 9 June 2024.

In relation to the Community Correction Order imposed by the Local Court in September 2020, His Honour found the order had been breached, revoked it, and took no further action beyond revocation.

Orders Made

  • Head sentence of four years three months imposed, with a non-parole period of two years ten months
  • Sentence backdated to 10 August 2021, expiring 9 November 2025; non-parole period to expire 9 June 2024
  • Community Correction Order of 10 September 2020 revoked; no further action taken on the breach
  • Compensation order matter stood over, with the possibility of resolution by agreement or by a further listing

Key Takeaways

  • The District Court applied totality principles to four separate residential break-and-enter offences committed within five days, imposing a combined head sentence considerably shorter than the sum of the individual indicative terms.
  • Some degree of accumulation was warranted because the offences were discrete criminal acts, but full accumulation was rejected to avoid a crushing sentence that would undermine rehabilitation.
  • Where an offender's parole under a prior sentence is revoked solely because of the new offending, backdating the fresh sentence to reflect that connection is an available and appropriate sentencing response.
  • A 25% discount for utilitarian value is applicable to early guilty pleas under the Crimes (Sentencing Procedure) Act 1999, even where the offender is already in custody on unrelated matters.
  • Revoking a Community Correction Order for breach does not automatically require the imposition of any additional penalty; a court may revoke and take no further action.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 112, 113
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Bugmy v The Queen [2013] HCA 37
- Ponfield (1999) 48 NSWLR 327