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District Court 17 June 2022

R v McCutchen

[2022] NSWDC 214

Theft & propertyPublic order & justice offences

Citation: R v McCutchen [2022] NSWDC 214
Court: District Court of New South Wales
Date: 17 June 2022 (amended 24 June 2022)
Judge: Mahony SC DCJ

Background

The offender, a 42-year-old man with an extensive criminal history dating back to the Children's Court, pleaded guilty to one count of aggravated break and enter and commit a serious indictable offence under s 112(2) of the Crimes Act 1900. The offence was committed on 8 October 2018, at the Blue Mountains Running Co retail store, in company with a co-offender. At the time, the offender was on parole, which was subsequently revoked.

In the early hours of the morning, the two men arrived at the store in a stolen vehicle. The co-offender forced the front door open with a crowbar and both men entered the premises, triggering the alarm. They stole clothing, shoes, and a cash register containing $600. The entire incident was captured on CCTV. Police later recovered stolen goods with a value of approximately $2,689.69 from associated premises, and DNA evidence linked both men to the offence.

A certificate offence under s 166 of the Crimes (Sentencing Procedure) Act 1999 was also dealt with at sentence: being carried in a conveyance taken without the owner's consent, relating to the stolen vehicle used during the break-in.

  • What sentence was appropriate for an offender with a lengthy and serious criminal history, including prior armed robberies and break-and-enter offences?
  • How should the standard non-parole period of five years (applicable to s 112(2) offences) inform the sentencing exercise?
  • What weight should be given to the offender's background, including any disadvantaged upbringing, in mitigation under the principles from Bugmy v The Queen?
  • How should the totality principle apply, given the offender had been sentenced for other offences after the commission of the index offence?
  • Was any adjustment to the head sentence warranted on totality grounds, given the chronological sequence of sentencings?

Decision

Mahony SC DCJ sentenced the offender for the aggravated break and enter offence, with the court taking into account the offender's guilty plea, his complex personal background, and his very significant criminal antecedents. The standard non-parole period of five years for this category of offence served as a reference point, though the court had regard to all relevant circumstances in arriving at the final sentence. The offence was committed in the company of another person, at night, using a stolen vehicle, and whilst on parole, all of which were aggravating factors.

The court considered the offender's background, including a difficult and disadvantaged upbringing, as a mitigating consideration consistent with the principles in Bugmy. However, the court also noted the length and seriousness of the criminal history, which substantially limited the weight available to subjective factors and curtailed any expectation of leniency on grounds of rehabilitation.

On the question of totality, the court found that the index offence was entirely separate from the other offences for which the offender had been sentenced in 2018, 2019, 2021, and again in late 2021. Because the index offence did not form part of the same series of offences or episodes of criminality as those later sentencing proceedings, no further adjustment to the head sentence was made on totality grounds. The court noted that while the totality principle can be applied by reducing a head sentence (particularly where sentencing has been significantly deferred), no submissions were made on that issue and the circumstances here did not warrant such a reduction.

For the s 166 certificate offence of being carried in a conveyance without the owner's consent, the court imposed no further penalty pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999, reflecting the relatively ancillary nature of that offending in the overall sentencing exercise.

Orders Made

  • The offender was convicted of aggravated break and enter and commit a serious indictable offence under s 112(2) of the Crimes Act 1900.
  • A non-parole period of two years was imposed, commencing 1 November 2021 and expiring 31 October 2023.
  • A balance of term of one year and seven months was imposed, commencing 1 November 2023 and expiring 31 May 2025.
  • The offender was convicted of the s 166 certificate offence (being carried in a conveyance without the owner's consent under s 154A(1)(b) of the Crimes Act 1900).
  • Pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999, no further penalty was imposed for the certificate offence.

Key Takeaways

  • The District Court confirmed that the standard non-parole period for aggravated break and enter under s 112(2) of the Crimes Act (five years) operates as a reference point in sentencing, not a floor or ceiling, and must be weighed against all relevant objective and subjective factors.
  • Under the principles established in Bugmy v The Queen, a disadvantaged background remains a relevant mitigating consideration even for repeat offenders, though its practical weight diminishes where the criminal history is extensive and serious.
  • Where multiple sentencing proceedings occur out of chronological order (the index offence being committed before later matters are sentenced), the totality principle does not automatically require a reduction in the head sentence unless the offences form part of the same series or episode of criminality.
  • A co-offender's involvement in a break and enter, combined with commission of the offence while on parole and at night using a stolen vehicle, constituted significant objective aggravating features in the assessment of the appropriate sentence.
  • Section 10A of the Crimes (Sentencing Procedure) Act 1999 permits a court to record a conviction for a minor or ancillary offence without imposing any additional penalty, which the District Court applied here to the certificate offence of being carried in a stolen vehicle.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 112(2), 154A(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Care v R [2022] NSWCCA 101
- Haak v R [2022] NSWCCA 28
- Hoskins v R [2021] NSWCCA 169
- Jackson v R [2010] NSWCCA 162
- Lloyd v R [2022] NSWCCA 18
- Veen v R (No. 2) (1998) 164 CLR 465; [1988] HCA 14
- Johnson v The Queen [2004] HCA 15; 78 ALJR 616