AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 5 October 2022

R v Sangster

[2022] NSWDC 694

Theft & propertyPublic order & justice offences
CRIME PEOPLE PRESENT SENTENCING RELEVANT FACTORS ON SENTENCE EARLY GUILTY PELA NEED FOR PUNISHMENT BACKGROUND OF TRAUMA AND DEPRIVATION

Citation: R v Sangster [2022] NSWDC 694
Court: District Court of New South Wales
Date: 5 October 2022
Judge: Haesler SC DCJ

Background

In the early hours of 7 September 2021, the offender attended a residential suburb of Wollongong and broke into the garages of several homes while the occupants slept. The offences involved forcing open garage doors, rummaging through property, and stealing items including a motorcycle valued at approximately $18,000, tools, a children's bicycle, and other goods.

Two charges proceeded to sentence, both under s 112(2) of the Crimes Act 1900 (aggravated break and enter and commit a serious indictable offence, with people present). Three further associated matters were placed on a Form 1 to be taken into account at sentence. The aggravation arose because, given the late hour, the offender was aware occupants would be present in the attached homes.

The offender, a young Aboriginal man, was on parole from the Children's Court at the time. He had an extensive juvenile record, was effectively homeless, and was drug-affected when the offences were committed. These proceedings constituted his first adult custodial sentence.

  • What was the objective seriousness of each offence, having regard to the Ponfield guideline judgment on break and enter offences?
  • What subjective factors bore on the appropriate sentence, including the offender's age, background of deprivation and trauma, drug dependency, and Aboriginal background?
  • What weight should be given to the early guilty plea, the breach of parole, and the need for partial accumulation of sentences?
  • Whether special circumstances existed justifying a departure from the standard ratio of non-parole period to total sentence.

Decision

Haesler SC DCJ assessed the objective seriousness of the offences as requiring custodial penalties, noting the residential setting, the late hour, the distress caused to victims, and the broader community harm generated by home intrusions. The court acknowledged that while the monetary value of most items was relatively modest, property taken from the home carries personal significance beyond its insured value. The presence of a valuable motorcycle in one garage and the drug-affected state of the offender heightened the potential for serious escalation.

The court applied significant weight to the offender's subjective circumstances. Drawing on a psychological report by Dr Dornan and a Sentence Assessment Report, Haesler SC DCJ found the offender had experienced severe background deprivation and trauma from a very young age, had been associated with criminal environments since childhood, and had developed drug dependency before he was capable of making rational choices. These matters were considered in accordance with the principles in Bugmy v The Queen and R v Fernando, which recognise that the disadvantage experienced by Aboriginal offenders may diminish moral culpability without excusing the conduct.

The 25% utilitarian reduction for the early guilty plea was applied to both matters. The court treated the breach of Children's Court parole as a discrete aggravating factor, accounting for it by a modest two-month addition to the custodial portion, and took care not to double-count it. The court found special circumstances justifying a substantially extended parole period relative to the non-parole period, given the offender's age, immaturity, and the rehabilitative work required upon release.

The court expressed concern that the deterrence principle carries reduced weight for young, immature offenders from severely disadvantaged backgrounds, citing the principle articulated in Bugmy that background trauma does not diminish in relevance simply because prior sentences have not deterred. Release to parole was expressed as subject to determination by the NSW State Parole Authority, not automatic.

Orders Made

  • Sequence 5 (principal offence, taking of motorcycle, with Form 1 matters): indicated sentence of 2 years and 7 months; non-parole period of 1 year and 4 months.
  • Sequence 1 (second aggravated break and enter): indicated sentence of 1 year and 10 months; non-parole period of 11 months.
  • Aggregate sentence: 3 years and 1 month, commencing 21 November 2021 (aggregated to account for 2 months already in custody).
  • Aggregate non-parole period: 1 year and 6 months, commencing 21 November 2021, making the offender eligible for parole consideration from 20 May 2023.
  • Parole period: 1 year and 7 months; total sentence to expire 20 December 2024.
  • The Registrar was directed to forward Dr Dornan's psychological report (Exhibit 1) to Corrective Services with the warrant.

Key Takeaways

  • Under s 112(2) of the Crimes Act 1900, aggravated break and enter with people present carries a maximum of 20 years and a standard non-parole period of 5 years, but the sentencing court retains substantial discretion to depart from that standard where significant mitigating factors are established.

  • The Ponfield guideline judgment on break and enter offences retains a statutory role under s 42A of the Crimes (Sentencing Procedure) Act 1999, but is of limited utility as a prescriptive guide following the introduction of s 21A; it operates primarily as a reminder to assess the particular facts of each offence closely.

  • Background deprivation and trauma, including that arising from the circumstances of Aboriginal offenders, remains a relevant mitigating consideration at each separate sentencing exercise. The District Court applied Bugmy to confirm this factor does not lose relevance because earlier sentences failed to deter.

  • A finding of special circumstances was made on the basis of the offender's young age, immaturity, first adult custodial sentence, and the extent of rehabilitative supervision required post-release. This supported an extended parole period substantially beyond the statutory default.

  • Breach of Children's Court parole operates as an aggravating feature at sentencing, but the court must guard against double-counting by limiting any specific uplift to a discrete and proportionate adjustment.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 42A
- Crimes (Administration of Sentences) Act 1999 (NSW)

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- R v Fernando (1992) 76 A Crim R 58
- Ponfield v R [1999] NSWCCA 435; (1999) 48 NSWLR 327
- Henry v R [1999] NSWCCA 111; (1999) 46 NSWLR 346
- Clarke-Jeffries v R [2019] NSWCCA 56
- KT v R [2008] NSWCCA 51
- Nasrallah v R [2021] NSWCCA 207