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District Court 18 July 2022

R v GREEN

[2022] NSWDC 270

Theft & property
CRIME AGGRAVATED BREAK ENTER AND STEAL MULTIPLE COUNTS OFFENDER PARITY PRIOR CONVICTIONS

Citation: R v Green [2022] NSWDC 270
Court: District Court of New South Wales
Date: 18 July 2022
Judge: Lerve DCJ

Background

The offender appeared for sentence in the Wagga Wagga District Court after being committed from the Local Court on four substantive charges of aggravated break and enter, all involving commercial premises in the Wagga Wagga area. The offending spanned multiple businesses including a joinery, an electrical retailer, a fast food outlet, and a jeweller. In most instances the offender acted in company with a co-offender.

Each substantive charge carried attached Form 1 documents (additional charges that a court takes into account when sentencing, without recording separate convictions). Those Form 1 charges included further counts of aggravated break and enter, attempted break and enter, larceny, and property damage, bringing the total number of offences considered by the court to well over a dozen.

The offender had pleaded guilty before a magistrate and maintained those pleas at the District Court hearing. He also had prior Community Corrections Orders in place at the time of the offending, and asked the court to address those breaches as part of the sentencing exercise.

  • What aggregate sentence was appropriate, having regard to the number and seriousness of the substantive offences and the Form 1 matters?
  • How should the Form 1 charges be treated in accordance with the principles in the Attorney General's Application (2002) 56 NSWLR 146?
  • What discount applied for the early pleas of guilty?
  • How did the parity principle apply, given that a co-offender had been sentenced separately and the offender faced additional charges the co-offender did not?
  • Was a finding of special circumstances warranted, justifying a non-parole period shorter than the statutory ratio?
  • How should the breach of Community Corrections Orders be addressed?

Decision

Lerve DCJ granted the offender a full 25% discount on each sentence for the utilitarian value of the early guilty pleas, entered as they were before a magistrate and maintained at the District Court. The court assessed the individual offences as falling moderately below the mid-range of objective seriousness. The aggravating factor in each instance was the offender acting in company, which the court noted is generally regarded as the least serious of the statutory aggravating factors under section 105A of the Crimes Act 1900.

On the Form 1 matters, the court applied the principles from the Attorney General's Application, treating those charges as requiring a meaningful upward impact on each individual sentence, given the number and nature of the additional offences. The court addressed the Community Corrections Order breaches by treating the commission of further offences while on conditional liberty as an aggravating factor built into the overall sentence, with no separate action taken on the orders themselves.

The parity question arose because the co-offender had been sentenced in December 2021 without facing charges relating to the Boleek Jewellers offence, which was among the most serious matters before the court. The court found that the overall sentence for this offender necessarily had to exceed that of the co-offender, given the additional and more serious offending for which he alone was being sentenced. A finding of special circumstances was made, resulting in a non-parole period constituting approximately 63% of the total sentence, with the reasons for that finding set out in the body of the remarks.

Orders Made

  • The offender was convicted on each matter to which he pleaded guilty.
  • An aggregate sentence of 5 years 6 months was imposed, with a non-parole period of 3 years 4 months.
  • The non-parole period runs from 16 December 2020 and expires on 15 April 2024.
  • The balance of term on parole commences 16 April 2024 and expires 15 June 2026.
  • The court recommended the offender's release at the expiration of the non-parole period.
  • A copy of the report of Mr Luke Brabant (exhibit 1 on sentence) was directed to be forwarded to the Department of Corrective Services with the relevant warrant.

Key Takeaways

  • Where a co-offender has been sentenced for a subset of the overall offending, the parity principle does not prevent a higher sentence for an offender who faces additional, more serious charges that the co-offender was never required to answer.
  • Form 1 charges must have a meaningful, not merely nominal, impact on the individual sentence to which they attach, consistent with the principles in the Attorney General's Application (2002) 56 NSWLR 146.
  • Acting in company, while a statutory aggravating factor under section 105A of the Crimes Act 1900, is treated by the courts as the least serious of the available aggravating factors.
  • Breaching a Community Corrections Order by committing further offences can be addressed as an aggravating circumstance within the primary sentence, without the court necessarily taking separate action to revoke or vary the order.
  • A full 25% utilitarian discount for guilty pleas is available where pleas are entered at the earliest opportunity before a magistrate and are consistently maintained through to the District Court sentencing hearing.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), including ss 105A and 113(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 37

Cases
- The Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act, 1999 No 1 of 2002 (2002) 56 NSWLR 146
- Bugmy v The Queen [2013] HCA 37
- Clifford [2008] NSWCCA 190
- French [2010] NSWCCA 24
- Harris v R [2007] NSWCCA 130
- Mbele v R [2021] NSWCCA 182
- Merrin v R [2007] NSWCCA 255
- Toller v R [2021] NSWCCA 204
- Valentine v R [2020] NSWCCA 116