Citation: R v Eckersley [2022] NSWDC 747
Court: District Court of New South Wales
Date: 2 September 2022
Judge: King SC DCJ
Background
The offender, a 43-year-old man with an extensive criminal history, appeared for sentence on two principal offences and several Form 1 matters. All offences occurred on 28 April 2021 in the Kempsey area. At the time, the offender was six weeks into a 15-month Community Correction Order.
The first principal offence involved breaking into an occupied family home in the early hours of the morning and stealing phones, a laptop, a tablet, and other items while the family, including three young children, slept. The second principal offence involved fleeing from police in a vehicle he had stolen from an elderly couple aged 80 and 86, driving dangerously in the course of the pursuit.
The Form 1 matters included: taking and driving the elderly couple's vehicle, larceny of the car keys from within their home, and entering their home with intent to steal. A further Form 1 matter of driving under the influence was taken into account alongside the police pursuit charge. The offender had entered early guilty pleas at Kempsey Local Court, entitling him to a 25% discount on each sentence.
Legal Issues
- The appropriate objective seriousness to assign to each principal offence, having regard to the aggravating features (victims present, elderly victims, breach of Community Correction Order)
- How to apply the Bugmy principles, given the offender's deprived background, long-term drug abuse, and serious criminal history
- The weight to be given to the risk of ongoing institutionalisation when structuring the non-parole period
- How to apply the totality principle when arriving at an aggregate sentence for multiple offences
- The appropriate licence disqualification period for the police pursuit offence
Decision
His Honour assessed the aggravated break and enter as falling in the mid-range of objective seriousness. The offending was serious: it occurred in the dead of night in an occupied family home with young children present, and the offender had left his DNA on a McDonald's cup at the scene. The subsequent burglary and vehicle theft from an elderly couple added further gravity, particularly because Mrs Suffolk attempted to stop the offender from taking her car and was present during the theft.
On the subjective side, the court accepted that the offender's background engaged the principles in Bugmy v The Queen. The offender had suffered significant childhood deprivation, had been a heavy drug user since adolescence, and had spent much of his adult life in custody, resulting in a degree of institutionalisation. His Honour accepted that this history diminished, but did not eliminate, his moral culpability. The offender had demonstrated some positive conduct in custody, including completing programs and being regarded as a cooperative prisoner.
The court recognised a tension in structuring the non-parole period. Ordinarily, the non-parole period might reflect around two-thirds of the head sentence. However, given the risk that a short parole period would leave insufficient time for the offender to access support for drug dependency and reintegrate into the community, His Honour reduced the non-parole period to slightly below 65% of the overall term. The court imposed a three-year automatic licence disqualification for the police pursuit offence, noting it had no discretion to go below 12 months but declining to reduce it further given the circumstances.
Applying the totality principle, the court arrived at an aggregate sentence with a non-parole period commencing from 28 April 2021 (the date of first custody), with the earliest possible release date of 28 February 2025, followed by a parole period of two years and two months.
Orders Made
• Sentence of six years imprisonment with a non-parole period of three years, ten months and a balance of term of two years two months
• Sentence to commence from 28 April 2021
• First eligible for parole on 28 February 2025
• Balance of term/potential parole period to expire on 28 April 2027
Note: The judgment records the sentence structure, earliest release date of 28 February 2025, and a parole period of approximately two years and two months, together with a three-year licence disqualification for the police pursuit offence, but a formal orders schedule was not included in the text provided.
Key Takeaways
- The District Court applied Bugmy v The Queen to reduce (but not eliminate) moral culpability where the offender's long history of deprivation, childhood hardship, and drug dependency had contributed to his offending, even in the context of a substantial criminal record.
- Where an offender is at serious risk of ongoing institutionalisation, the sentencing court may structure the non-parole period at slightly below the standard two-thirds ratio, to allow a more meaningful period of supervised parole for community reintegration.
- Breaching a Community Correction Order at the time of the index offences operated as a statutory aggravating factor under the Crimes (Sentencing Procedure) Act 1999.
- A 25% guilty plea discount was applied following committal for sentence from the Local Court, consistent with the approach in R v Way.
- Under s 51B of the Crimes Act 1900, a conviction for police pursuit (failing to stop and driving dangerously) carries an automatic three-year licence disqualification, which the court may reduce but not below 12 months.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW): ss 112(2) (aggravated break and enter), 154A(1)(a) (take and drive), 117 (larceny), 114(1)(d) (enter building with intent), 51B(1) (police pursuit)
- Crimes (Sentencing Procedure) Act 1999 (NSW): s 32 (Form 1 procedure)
- Road Transport Act 2013 (NSW): s 112(1)(a) (drive under the influence)
Cases
- Bugmy v The Queen [2013] HCA 37 (deprivation and its ongoing relevance to moral culpability)
- R v Way [2004] 60 NSWLR 168 (guilty plea discounts)
- Attorney General's Application No 1 of 2002 [2002] NSWCCA 518 (sentencing principles)