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District Court 9 June 2022

R v Camarse

[2022] NSWDC 622

Assault & violenceTheft & property
CRIME ONE COUNT G UILTY VERDICT IN JUDGE ALONE TRIAL PRIOR CONVICTIONS FOR SIMILAR OFFENCES NO EVIDENCE OF REMORSE.

Citation: R v Camarse [2022] NSWDC 622
Court: District Court of New South Wales
Date: 9 June 2022
Judge: Tupman DCJ

Background

The offender, a 40-year-old man, faced sentencing following a jury verdict of guilty for aggravated break and enter with intent to steal, contrary to s 111(2) of the Crimes Act 1900 (NSW). The circumstance of aggravation was that the offender knew persons were inside the premises at the time of the offence.

The offence occurred on 10 January 2020 at an apartment in Chatswood. The offender had entered the premises through an unlocked screen door while several occupants were home, searched through a bedroom drawer, and was confronted by the male occupant upon his return. A physical struggle followed, during which furniture was damaged. The offender fled by jumping off the balcony and running into the street, shouting threats as he did so. Nothing was stolen.

The prosecution's case rested largely on DNA evidence connecting the offender to items found at the scene, including a baseball cap, a shoe, and a microfiber cloth. The jury rejected the defence proposition that DNA transfer could raise a reasonable doubt.

  • What was the objective seriousness of the offence, having regard to the Ponfield factors and the circumstances of the break and enter?
  • What weight should be given to the victim impact statement from the male occupant, who was not available for cross-examination?
  • Whether the s 5 threshold for imprisonment under the Crimes (Sentencing Procedure) Act 1999 (NSW) was crossed, given the relatively low objective criminality.
  • Whether the sentence could be served by way of Intensive Corrections Order (ICO), and how pre-sentence custody should be accounted for when imposing an ICO (which cannot be backdated).

Decision

Tupman DCJ assessed the objective seriousness of the offence as towards the lower end of the range, though not at the very bottom. Very few aggravating factors under Ponfield were present. The wearing of a disguise indicated some limited planning, but the court declined to treat the microfiber cloth as evidence of more serious planning, finding that inference was not the only one reasonably available.

The court gave little weight to most of the male occupant's victim impact statement. His described impacts were not consistent with his demeanour at trial or his conduct on the night of the offence, and he was not available for cross-examination. The court accepted the female occupant was genuinely affected, as would be expected when a home is violated by a stranger.

Despite the low objective seriousness, the court found the s 5 threshold for full-time imprisonment was crossed, citing the purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999, the offender's prior conviction for a materially similar offence, and the absence of remorse. The prior conviction did not operate as an aggravating factor but adversely affected the assessment of rehabilitation prospects. No discount applied for a guilty plea, as the matter had proceeded to trial.

On the question of ICO, the court found the community's safety would not be compromised by the sentence being served in the community, and the offender was otherwise suitable. Following the approach taken by Simpson J in Mandranis v R [2021] NSWCCA 97, the court adjusted the notional head sentence of approximately two and a half years to account for approximately 12 months of pre-sentence custody, arriving at an 18-month term to be served by ICO.

Orders Made

  • The offender is convicted of aggravated break and enter with intent to steal.
  • Sentenced to a term of imprisonment of 18 months, to be served by way of Intensive Corrections Order.
  • Standard conditions apply.
  • Additional condition: 250 hours of community service.

Key Takeaways

  • The District Court confirmed that an ICO term cannot be backdated to account for pre-sentence custody; instead, following Mandranis v R, the appropriate method is to reduce the term of imprisonment itself before ordering that it be served by way of ICO.
  • A prior conviction for a substantially similar offence does not automatically operate as a statutory aggravating factor under s 21A, but it remains relevant to the assessment of rehabilitation prospects and can disentitle an offender to leniency.
  • Where a victim impact statement is admitted without the maker being available for cross-examination, and its contents are inconsistent with other evidence, a sentencing court may give it little or no weight as an aggravating circumstance.
  • Objective seriousness in aggravated break and enter cases is informed by the Ponfield factors; in this case, limited evidence of planning and no property taken placed the offence towards the lower end of the range.
  • Even where objective seriousness is relatively low, the sentencing purposes of general deterrence and the offender's criminal history may still carry the sentence past the s 5 full-time custody threshold.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 111(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A
- Evidence Act 1995 (NSW)

Cases
- Mandranis v R [2021] NSWCCA 97
- R v Ponfield (1999) 48 NSWLR 327