Citation: R v Clarke [2022] NSWDC 503
Court: District Court of New South Wales
Date: 11 October 2022
Judge: Grant DCJ
Background
The offender pleaded guilty to a single count of aggravated break and enter and steal a motor vehicle, contrary to section 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 offending occurred on or about 30 April 2021 at a residential property in Leeton, NSW.
The offender and a co-offender targeted a 1977 Holden Torana SLR, valued between $80,000 and $85,000, which the complainant stored in a locked shed on his property. The pair conducted surveillance of the vehicle, hired a car-carrying trailer using the offender's partner's licence and bank card, forced open the shed in the early hours of the morning while the complainant was away, loaded the Torana onto the trailer, and transported it to Sydney. CCTV footage and mobile phone location data placed both men at key points along the route.
A suspected recovery of the vehicle was later made at Taree, though the compliance plate had been cut out and police were awaiting acid etching of the engine block to confirm its identity.
Legal Issues
- What was the appropriate sentence for the offender, having regard to the objective seriousness of the offence and the relevant aggravating and mitigating factors?
- What weight should be given to the offender's extensive criminal history, including a near-identical prior offence?
- Did the Bugmy principles (relating to the relevance of a deprived background to moral culpability) apply?
- Were special circumstances established, justifying a reduction in the proportion of the sentence to be served before parole eligibility?
- What discount applied for the guilty plea, and what commencement date was appropriate for the sentence?
Decision
Grant DCJ assessed the offence as involving a substantial level of planning, organisation and execution. The offender had conducted prior surveillance of the vehicle, timed the theft while the complainant was on holidays, and used his partner's identity documents and payment cards to obscure the rental of the trailer. The court rejected a submission by defence counsel that the offence was unsophisticated, finding the evidence plainly contradicted that characterisation.
The offender's criminal history was a significant aggravating factor. He had been sentenced in 2019 for an attempted break and enter to steal a premium show car in almost identical circumstances. His history of like offending, combined with prior convictions for violence and dishonesty, disentitled him to any leniency on that basis. The court found the present offence was more serious than the 2019 matter because the car was actually stolen on this occasion.
The court accepted that the Bugmy principles were enlivened, meaning the offender's background of deprivation could be taken into account in assessing moral culpability, though this did not diminish the seriousness of the offending. The court also accepted some contrition and remorse, and noted the offender had expressed a desire to rehabilitate. A supervision plan prepared by Community Corrections supported the prospect, however uncertain, of rehabilitation.
Special circumstances were found to exist, principally because of the risk of institutionalisation given the offender had spent much of his adult life in custody, and because a longer period of supervised parole could assist rehabilitation. The court applied a 10% discount for the guilty plea, entered at the first opportunity in the District Court.
Orders Made
- The offender was convicted of aggravated break and enter and steal a motor vehicle, contrary to section 112(2) of the Crimes Act 1900.
- Sentenced to a term of imprisonment of 3 years and 6 months, commencing 1 December 2021 and expiring 31 May 2025.
- Non-parole period set at 2 years and 4 months (66.6% of the head sentence, reflecting the finding of special circumstances).
- Eligible for release on parole on 31 March 2024.
Key Takeaways
- The District Court applied the guideline judgment in Attorney-General's Application (No 1); R v Ponfield (1999) 48 NSWLR 327 as a framework for assessing objective seriousness in break and enter cases, noting that multiple aggravating factors produce a cumulative effect on seriousness.
- A prior conviction for a near-identical offence, committed in substantially the same circumstances, was treated as a significant aggravating factor that disentitled the offender to leniency and elevated the present offence's seriousness by comparison.
- Under the Bugmy principles confirmed by the High Court in Bugmy v The Queen (2013) 249 CLR 571, evidence of a deprived background remains relevant to moral culpability at sentencing, even for repeat offenders with serious criminal histories.
- Special circumstances within the meaning of the Crimes (Sentencing Procedure) Act 1999 were established where there was a real risk of institutionalisation and a supervised parole period could assist rehabilitation, even without certainty that rehabilitation would succeed: Thach v R [2018] NSWCCA 252 at [45] applied.
- Where the defence conceded that full-time imprisonment was the only appropriate penalty, the sentencing exercise centred on the length of the term and the structure of the non-parole period rather than the threshold question of imprisonment itself.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 25D(2)(b)
Cases
- Attorney-General's Application (No 1); R v Ponfield (1999) 48 NSWLR 327
- Bugmy v The Queen (2013) 249 CLR 571
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- Filippou v The Queen (2015) 256 CLR 47
- McKillop v R [2010] NSWCCA 126
- Nicholls v R [2020] NSWCCA 66
- Thach v R [2018] NSWCCA 252