Citation: R v Collins; R v McWaters; R v Butler [2023] NSWDC 258
Court: District Court of New South Wales
Date: 13 April 2023
Judge: Haesler SC DCJ
Background
In the early hours of 13 April 2022, four people entered a home in Barrack Heights in the Wollongong area. A resident was asleep inside at the time. The group spent approximately 15 minutes inside, rummaging through the property and removing items including a PlayStation, a power drill, about $20 in coins, an old mobile phone, a gold watch, and a visitor's wallet. CCTV footage captured on the homeowner's phone identified the offenders, several of whom had previously visited the premises as guests.
Police arrested Timothy Collins and Dale McWaters the same day at their shared residence, where most of the stolen property was also recovered. Two women, Melissa Butler and Tracey Butler, were arrested several weeks later on 6 May 2022. At sentencing, Collins, McWaters, and Tracey Butler appeared before the court. Melissa Butler was granted an adjournment to complete a rehabilitation program.
Each offender had pleaded guilty in the Local Court to aggravated break and enter and commit a serious indictable offence, contrary to s 112(2) of the Crimes Act 1900 (NSW). The circumstance of aggravation was that each knew, or was taken to have known, that a person was present in the dwelling at the time.
Legal Issues
- What was the appropriate assessment of the objective seriousness of the offending across all co-offenders?
- How should each offender's subjective circumstances, including backgrounds of deprivation, trauma, and institutional abuse, affect the sentence imposed?
- What discount applied for the utilitarian value of early guilty pleas?
- How should the sentences be calibrated to achieve parity across offenders with differing but overlapping personal histories?
- What effect did each offender's breach of conditional liberty have on the sentences imposed?
Decision
Objective seriousness: Haesler SC DCJ placed the offending towards the lower end of the range for this type of offence. There was no planning, a single point of entry, a relatively modest amount of property taken, and the serious indictable offence underpinning the charge was larceny rather than a more serious category of offence. However, the court emphasised that four people entering a home in the middle of the night while a person slept inside carried a real risk of confrontation and caused genuine harm to the sense of safety of both the victims and the broader community. No offender was found to have played a lesser role than the others.
Subjective circumstances: Each offender presented a background marked by significant deprivation, trauma, and, in at least some cases, sexual abuse within institutional settings. Drawing on the High Court's analysis in Bugmy v The Queen (2013) 249 CLR 571, the court acknowledged that such backgrounds do not diminish moral culpability indefinitely but remain relevant at sentence. Drug use, particularly methylamphetamine, was identified as a precipitating factor in the offending for at least some offenders. The court noted each offender's expressions of remorse and their progress, to varying degrees, toward rehabilitation.
Guilty plea discount and conditional liberty: Each offender received a 25% reduction on the otherwise appropriate sentence in recognition of the utilitarian value of an early guilty plea under s 25D of the Crime (Sentencing Procedure) Act 1999 (NSW). The pleas were described as early, though entered against the backdrop of clear identification from CCTV. Each offender was also on conditional liberty at the time of the offending, and the court treated those breaches as an aggravating factor.
Collins specifically: For Collins, the court set a starting point of 3 years and 6 months, taking into account the seriousness of the offence, his long history of offending with origins in early childhood experiences, his drug use at the time, and the breach of his Intensive Correction Order. A Form 1 offence of possessing a small quantity of methylamphetamine was taken into account but attracted no additional penalty, given the court's view it would otherwise have been resolved by way of a non-conviction order or fine. After the 25% plea discount, the sentence was reduced to 2 years and 7 months.
Orders Made
Orders for Collins only are recorded in the text provided:
- Head sentence of 2 years and 7 months imprisonment
- Non-parole period of 1 year and 7 months, commencing 13 April 2022
- Released to parole on 12 November 2023
- Parole period of 1 year
Orders for McWaters and Tracey Butler are referenced in the judgment but are not reproduced in the text provided. Melissa Butler's sentencing was adjourned to allow her to complete a residential rehabilitation program.
Key Takeaways
- The District Court confirmed that all co-offenders bear equal responsibility for what occurs during a joint home invasion, regardless of their specific actions inside the premises, where no meaningful distinction in roles can be drawn.
- Under the guideline judgment in R v Ponfield [1999] NSWCCA 435, objective gravity must be assessed by reference to the particular facts of the case rather than by reference to a notional range in the abstract.
- Backgrounds of serious deprivation, trauma, and institutional abuse remain relevant at sentence even for repeat offenders, consistent with the principle affirmed in Bugmy v The Queen (2013) 249 CLR 571, though they do not operate as a permanent reduction in moral culpability.
- Breach of conditional liberty, such as an Intensive Correction Order, constitutes an aggravating factor that increases the sentence the court would otherwise have imposed.
- A Form 1 offence involving possession of a small quantity of methylamphetamine attracted no additional penalty where the court formed the view that the matter would otherwise have been resolved without conviction or by fine, and where drug use was already reflected in the assessment of the principal offending.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 112(2)
- Crime (Sentencing Procedure) Act 1999 (NSW), ss 21A, 25D, 42A
- Evidence Act 1995 (NSW)
- Criminal Appeal Act (NSW), s 26
Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- R v Ponfield; Attorney General of NSW Application number 1 1999 [1999] NSWCCA 435; (1999) 48 NSWLR 327
- Attorney General of NSW Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518; (2002) 56 NSWLR 146
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- R v Millwood [2012] NSWCCA 2
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- R v Zheng [2023] NSWCCA 64
- Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3