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District Court 19 October 2022

R v Proctor

[2022] NSWDC 489

Theft & property

Citation: R v Proctor [2022] NSWDC 489
Court: District Court of New South Wales
Date: 19 October 2022
Judge: Scotting DCJ

Background

The offender, a 28-year-old man, appeared for sentencing after pleading guilty in the Local Court to aggravated break, enter and steal contrary to s 112(2) of the Crimes Act 1900. The offence carried a maximum penalty of 20 years imprisonment and a standard non-parole period of five years.

The offence occurred on 17 April 2021. The offender and a co-offender drove from the Central Coast to a residential property in Greenacre, having exchanged text messages in the days prior discussing a plan to steal money from the occupant. They entered the property's al fresco area through an unlocked garage door. After briefly leaving, they re-entered, and while the occupant was present and protesting, they searched the area. The co-offender found a small electronic safe, pushed the occupant onto a couch when she tried to intervene, and removed the safe. The offender found only an empty backpack.

The offender had no prior criminal history. He had been diagnosed with Asperger's syndrome, ADHD, and Oppositional Defiant Disorder, and had experienced significant trauma during his schooling years, including a suicide attempt at age seven following exclusion from school.

  • What was the appropriate sentence for aggravated break, enter and steal, given the standard non-parole period of five years and the seriousness of the offence?
  • Whether the offender's complex mental health conditions, lack of prior criminal history, and other personal circumstances justified a non-custodial sentence.
  • Whether the threshold under s 5 of the Crimes (Sentencing Procedure) Act 1999 (the requirement that imprisonment be a last resort) was crossed.
  • What sentence maintained appropriate parity with the co-offender, who had received a term of imprisonment.

Decision

His Honour applied the standard sentencing framework under the Crimes (Sentencing Procedure) Act 1999, including the s 3A purposes of sentencing and the aggravating and mitigating factors in s 21A. The offender received a 25% discount on sentence for his early guilty plea entered in the Local Court.

The sentencing assessment report painted a mixed picture. The offender showed limited insight into the seriousness of his conduct, rationalised his behaviour by characterising the intended victim as a drug dealer, and deflected blame onto his co-offender. He was assessed as medium-low risk of re-offending and suitable for community service work.

Despite these concerns, His Honour accepted the evidence of clinical neuropsychologist Dr Matthew Conroy and gave significant weight to the offender's diagnosed conditions. The court found that his Asperger's syndrome rendered him psychologically immature, susceptible to the influence of others, and less able to understand social cues or appreciate the full consequences of his actions. His traumatic history, including assault by teachers, confinement at school, and a childhood suicide attempt, provided important context for his development and behaviour.

His Honour was not satisfied that the threshold for imprisonment under s 5 had been crossed, even for an offence of this seriousness. The co-offender, who had prior convictions, was on conditional liberty at the time, had physically pushed the victim, and played a more dominant role, had received 2 years and 6 months imprisonment with a 15-month non-parole period. The court found good reasons for imposing a lesser sentence of a different nature on the offender, having regard to those distinctions and to the offender's complex mental condition.

Orders Made

  • The offender was convicted.
  • Instead of imprisonment, the court imposed a Community Corrections Order for three years under s 8(1) of the Crimes (Sentencing Procedure) Act 1999.
  • Standard conditions applied: no further offences; submission to supervision by a Community Corrections Officer.
  • Additional conditions included:
  • Participation in and receipt of mental health treatment as directed by Community Corrections
  • No association with the co-offender
  • Completion of 80 hours of community service work
  • The offender was required to report to the Wyong Community Corrections Office by 4pm on 26 October 2022.

Key Takeaways

  • A Community Corrections Order was considered appropriate instead of imprisonment where the offender's complex neurodevelopmental conditions, including Asperger's syndrome, ADHD, and Oppositional Defiant Disorder, meant he did not fully appreciate the consequences of his actions and was susceptible to the influence of others.
  • Under s 5 of the Crimes (Sentencing Procedure) Act 1999, imprisonment must not be imposed unless the court is satisfied no other penalty is appropriate; the District Court found that threshold was not met here, even for an offence carrying a 20-year maximum and a five-year standard non-parole period.
  • Parity principles required the court to consider the co-offender's sentence, but departure from that sentence was justified by the co-offender's criminal history, his role as the more dominant participant, his prior conditional liberty, and the contrasting mental health circumstances of the offender before the court.
  • An early guilty plea entered in the Local Court attracted a 25% sentencing discount under s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999.
  • Limited insight and rationalisation of offending, as reflected in the sentencing assessment report, did not automatically foreclose a non-custodial outcome where the court accepted that mental health conditions materially affected the offender's understanding and behaviour.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 8(1), 21A, 25D(2)(a)

Cases
- R v Olbrich (1999) 199 CLR 270