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District Court 29 September 2021

R v Whalan

[2021] NSWDC 812

Theft & propertyDomestic & family violencePublic order & justice offences
CRIME SENTENCE AGGRAVATED BREAK AND ENTER SECTION 166 CERTIFICATE AGGREGATE SENTENCE MULTIPLE OFFENCES

Citation: R v Whalan [2021] NSWDC 812
Court: District Court of New South Wales
Date: 29 September 2021
Judge(s): Sutherland SC DCJ

Background

The offender, a 37-year-old man with an extensive criminal history, pleaded guilty to a charge of breaking and entering a dwelling house with intent to commit larceny in company, contrary to section 113(2) of the Crimes Act 1900 (NSW). The maximum penalty for that offence is 14 years imprisonment, with no standard non-parole period. The principal offence occurred on 26 February 2019, when the offender and two others broke into a residential property at Blacktown. The offenders were readily identifiable on the property's CCTV footage. Nothing was stolen, and they left calmly through the front door when a householder returned.

By the time the matter came before Sutherland SC DCJ, a significant number of additional charges had accumulated from both Blacktown and Dubbo Local Courts. These were brought before the District Court under section 166 of the Criminal Procedure Act 1986 (NSW) so that all outstanding matters could be resolved in a single proceeding. The additional offences included stalking and intimidation of the offender's domestic partner, a break, enter and steal at Orange, goods in custody, malicious damage, and larceny.

Throughout the period between arrest and sentence, the offender cycled repeatedly between bail, remand, conditional release, and further offending. His criminal history included multiple prior break and enter offences, larceny, robbery, police pursuit, and driving whilst unlicensed.

  • What aggregate sentence was appropriate across multiple offences of varying objective seriousness, having regard to the principle of totality?
  • How should the court apply the section 166 certificate process to bring Local Court matters into the District Court proceeding?
  • Whether a finding of special circumstances was warranted to extend the additional term beyond the standard proportion.
  • What weight should be given to the offender's entrenched recidivism, background, drug use, and prospects of rehabilitation when fixing both the head sentence and non-parole period?
  • How should prior periods of custody, including time served on remand across various matters, be accounted for in backdating the sentence?

Decision

The court found that the principal break and enter offence was at or near the lowest range of objective seriousness. The three offenders entered the premises wearing no disguises and with distinctive tattoos exposed on their legs, despite knowing the property had CCTV. Nothing was stolen, damage was minimal, and the offenders left through the front door when asked. The court noted, with some candour, that the likely ingestion of illicit substances may explain what it described as "abject stupidity."

Despite the low objective seriousness of the principal offence, the offender's criminal history was a significant aggravating feature. He had committed the index offence while on parole and during an adjournment granted by another District Court judge specifically to give him the opportunity to engage in a rehabilitation program. The subsequent pattern of conduct, including further offending on conditional liberty, a domestic violence offence against his partner, and property offences in Orange, demonstrated what the court characterised as entrenched recidivism.

The court imposed an aggregate sentence of four years under section 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW). Indicative sentences were set for each offence, with the most significant being two years for the break, enter and steal at Orange. A finding of special circumstances was made on the basis of a real risk of institutionalisation and the offender's need for extended supervision upon release, resulting in a non-parole period of two years rather than the standard two-thirds proportion.

The aggregate sentence was backdated by one year and three months to 29 June 2020, reflecting periods already spent in custody. A minor cannabis possession charge was dealt with by recording a conviction under section 10A without further penalty.

Orders Made

  • Aggregate sentence of 4 years imprisonment imposed under section 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Non-parole period of 2 years, commencing 29 June 2020 and expiring 28 June 2022
  • Head sentence (additional term) expiring 28 June 2024
  • Special circumstances found, warranting the extended additional term
  • Indicative sentences recorded as follows:
  • Break and enter in company (Doonside): 13 months
  • Stalk/intimidate (domestic violence): 8 months
  • Break, enter and steal (Orange): 2 years
  • Goods in custody: 3 months
  • Malicious damage (Toyota Land Cruiser windows): 6 months
  • Larceny from vehicle: 12 months
  • Cannabis possession (1.47g): Conviction recorded, no further penalty (section 10A)

Key Takeaways

  • An aggregate sentence under section 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) can appropriately encompass both indictable and summary matters, with the court required to record indicative sentences for each offence and taking summary matters into account when fixing the aggregate.

  • Where an offender commits further offences while on parole and during a court-ordered adjournment granted specifically to enable rehabilitation, those circumstances are significant aggravating factors that bear heavily on the assessment of prospects of rehabilitation and the weight given to subjective features.

  • Entrenched recidivism, rather than reducing the weight given to general deterrence, can displace rehabilitation as a sentencing consideration and justify a longer aggregate term than the objective seriousness of any single offence might suggest in isolation.

  • A finding of special circumstances under the Crimes (Sentencing Procedure) Act 1999 (NSW) is available where there is a genuine risk of institutionalisation, supporting an extended additional term to allow for adequate supervision upon release.

  • Backdating an aggregate sentence to account for multiple, overlapping periods of remand across different proceedings requires careful calculation; the parties' agreement on the appropriate backdating period can assist the court in arriving at a practical resolution.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 113(2)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 11, 53A
- Criminal Procedure Act 1986 (NSW), s 166
- Drug Misuse and Trafficking Act 1985 (NSW)

Cases
- R v Bugmy (2013) 302 ALR 192
- R v Imbornone [2017] NSWCCA 144
- R v Price [2016] NSWCCA 50
- R v Qutami (2001) 127 A Crim R 369
- R v Wong [2003] NSWCCA 247