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District Court 4 August 2022

R v Bennett

[2022] NSWDC 321

Fraud & dishonestyTheft & property
SENTENCING PROPERTY OFFENCES RECEIVING POSSESS HOUSEBREAKING IMPLEMENT FORM 1 GOODS IN CUSTODY DISADVANTAGE

Citation: R v Bennett [2022] NSWDC 321
Court: District Court of New South Wales
Date: 4 August 2022
Judge: Beckett DCJ

Background

The offender, an Aboriginal man, appeared for sentencing on two charges: receiving stolen property (value under $5,000) and possessing a housebreaking implement (a 45cm crowbar) having a prior conviction for a section 114 offence. A goods in custody charge was attached to the receiving matter on a Form 1. Both offences attracted a maximum of 10 years imprisonment.

The facts arose from an incident on 30 May 2021, when a woman's handbag was stolen at Seven Hills Plaza. Police tracked the offender to the Leichhardt area and found him in possession of the victim's handbag, the crowbar, designer sunglasses, white gloves, a glass methamphetamine pipe, and resealable bags. DNA evidence did not exclude the offender's involvement with the handbag.

The offender pleaded guilty in the Penrith Local Court, attracting a 25% statutory discount. He had been in custody since his arrest on 31 May 2021, and his parole had been revoked shortly afterwards in relation to a prior robbery in company whilst armed with a dangerous weapon.

  • Where the offences fell on the scale of objective seriousness
  • What aggravating features applied, including whether the offender's criminal history and commission of offences while on parole should be reflected in sentence
  • How the offender's profound background of disadvantage, including childhood trauma, institutionalisation, hearing impairment, and drug dependence, should affect his moral culpability under the principles in Bugmy v The Queen
  • Whether special circumstances existed to justify varying the standard ratio between the non-parole period and the total sentence
  • What the appropriate aggregate sentence should be, and whether the section 5 threshold for full-time custody was met

Decision

Beckett DCJ assessed the objective seriousness of both offences as below the mid-range, though not far below it. The ceiling of $5,000 for the receiving charge and the absence of evidence about the actual value of items taken informed that assessment. The crowbar was noted as a sizeable housebreaking implement. Drug addiction was considered in the context of moral culpability rather than as a separate mitigating factor.

The judge identified two key aggravating features. The offender's extensive prior record, beginning in the Children's Court and continuing through most of his adult life with dishonesty, driving, and violence matters, did not strictly aggravate the offences but disentitled him to leniency. More significantly, the offending was committed while the offender was on parole for a serious armed robbery offence.

Drawing on the Bugmy Bar Book and the principles established in Bugmy v The Queen, Beckett DCJ gave careful consideration to the offender's deeply disadvantaged background. The offender had experienced family violence, physical and sexual abuse, early introduction to drugs and alcohol, undiagnosed hearing impairment that led to physical punishment in childhood, the removal of children by the state, loss of a child to SIDS, and extensive institutionalisation. The judge accepted that these factors, which are characteristic of systemic and profound disadvantage experienced by many Aboriginal Australians, reduced the offender's moral culpability. The hearing impairment was treated as a particular factor relevant to both moral culpability and to special circumstances, given the impact of deafness on access to rehabilitative programs in custody.

Special circumstances were found on the basis that the offender required extensive post-release supervision to address his hearing impairment, ongoing opiate replacement treatment, drug and alcohol treatment, and psychological support for PTSD stemming from childhood trauma. COVID-19 conditions in custody were also noted as a contributing factor. An aggregate sentence of 2 years and 3 months was imposed, with a non-parole period of 14 months, resulting in the offender's immediate release.

Orders Made

  • Aggregate sentence of 2 years and 3 months, commencing 30 May 2021 and expiring 29 August 2023
  • Non-parole period of 14 months, expiring 29 July 2022, with the offender to be released forthwith
  • Sequence 7 (receiving stolen property): 24 months, after 25% guilty plea discount, with Form 1 matter taken into account
  • Sequence 8 (possession of housebreaking implement with prior conviction): 9 months, after 25% guilty plea discount
  • Recommendation that Community Corrections direct the offender to seek treatment for hearing impairment through Tharawal, trauma counselling, and drug and alcohol treatment (including continuation of opiate replacement treatment)
  • Referral of the psychological report and letters from Kari Ltd and Tharawal to Community Corrections

Key Takeaways

  • The District Court applied Bugmy v The Queen to hold that profound childhood disadvantage, including family violence, abuse, early substance exposure, and state removal of children, reduces an offender's moral culpability and must be weighed in mitigation at sentencing, even where an offender has an extensive criminal record.
  • Undiagnosed and untreated hearing impairment from childhood can carry particular weight in sentencing Aboriginal offenders: the District Court accepted that the offender had been physically punished as a child for apparent ignorance that was in fact deafness, and that hearing impairment limits access to rehabilitative programs in custody.
  • Committing an offence while on parole for a serious offence constitutes a significant aggravating factor, relevant to both the length of the term imposed and its commencement date, though courts must take care not to count this factor twice.
  • Special circumstances justifying a reduced non-parole period relative to the total sentence can be established where an offender has complex health, disability, and rehabilitation needs requiring sustained supervision and support upon release.
  • The Bugmy Bar Book was referenced as a source of evidence about the systemic disadvantage experienced by Aboriginal Australians, including on matters of hearing health and the significance of culture to rehabilitation and wellbeing.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 188(1), 114, 115, 527C(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 21A(2)

Cases
- Bugmy v The Queen (2013) 249 CLR 571
- DPP (Cth) v Ramos [2018] VSCA 290
- Lloyd v R [2022] NSWCCA 18
- R v BS-X [2021] ACTSC 160
- R v Russell (1995) 84 A Crim R 286

Other Materials
- Bugmy Bar Book Committee, Hearing Impairment (November 2019)
- Vanessa Edwige and Dr Paul Gray, Significance of Culture to Wellbeing, Healing and Rehabilitation (Bugmy Bar Book Committee, 2021)
- Community Affairs References Committee, Parliament of Australia, Hear Us: Inquiry into Hearing Health in Australia (May 2010)