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District Court 6 November 2023

R v Fuller

[2023] NSWDC 597

Assault & violenceTheft & property
CRIMINAL SENTENCE ENTER DWELLING WITH INTENT TO STEAL SERIOUSNESS OF OFFENCES ROLES OF OFFENDER & CO ACCUSED

Citation: R v Fuller [2023] NSWDC 597
Court: District Court of New South Wales
Date: 6 November 2023
Judge: King SC DCJ

Background

The offender, a 36-year-old man with an extensive criminal history, was sentenced for entering a hotel room with intent to steal, contrary to s 111(1) of the Crimes Act 1900. The offence formed part of a coordinated scheme in which a co-accused lured the victim, a man she had met through a dating website, to a hotel room before directing the offender to the room to carry out the theft.

On 29 October 2022, the victim checked into the Mercure Hotel in Macquarie Park, placed $500 cash in a drawer, and waited for the co-accused. Instead, the offender knocked on the door, attempted to push past the victim when the door was opened, and then entered the room with the co-accused. Together they took the $500 cash. The offender also took the victim's car keys and drove away in the victim's Mercedes.

The offender was arrested the same day and had been in custody since. He pleaded guilty and asked the court to take into account two further offences on a Form 1: larceny of the $500 cash and stealing a motor vehicle.

  • What was the appropriate sentence for the principal offence of entering a dwelling with intent to steal, taking into account the two Form 1 offences?
  • What discount applied for the utilitarian value of the guilty plea?
  • How should the offender's post-arrest conduct (including recorded gaol calls discussing paying off the victim) affect findings of remorse and contrition?
  • Did subjective matters, including psychological evidence and a desire to reconnect with the offender's adult daughter, warrant a finding of special circumstances to vary the standard non-parole period ratio?

Decision

King SC DCJ assessed the offending as serious. The scheme was premeditated and coordinated: the co-accused cultivated a relationship with the victim over several months, shared his room details with the offender in real time, and guided him directly to the room. The offender's role was active and central, carrying out the physical entry and the vehicle theft.

The post-arrest gaol calls weighed heavily against any finding of genuine remorse. Recorded calls revealed the offender discussing paying off the victim to withdraw the charges, and a subsequent call to the victim from a third party followed, apparently as a result of those discussions. His Honour characterised this conduct as what would in effect amount to a conspiracy to pervert the course of justice, and treated it as negating any claimed contrition.

Psychological evidence tendered on the offender's behalf did not reduce his moral culpability in the court's view. His Honour noted that the offender committed these offences within three days of being placed on a Community Corrections Order, and that his criminal history was described as very poor. The s 5 threshold under the Crimes (Sentencing Procedure) Act 1999 (requiring the court to consider whether the purposes of sentencing can be achieved by a non-custodial sentence) was clearly passed.

The court declined to find special circumstances to extend the parole period beyond the statutory one-quarter of the total sentence. His Honour concluded there was insufficient evidence that a longer parole period would assist rehabilitation, given the offender's long history of drug use and repeated short periods in the community followed by reoffending.

Orders Made

  • Principal offence: enter dwelling with intent to steal (s 111(1) Crimes Act 1900)
  • Pre-discount sentence: 5 years and 4 months imprisonment
  • 25% discount applied for the utilitarian value of the guilty plea
  • Final sentence: 4 years imprisonment
  • No special circumstances found; non-parole period: 3 years
  • Sentence commencing 29 October 2022 (date of arrest)
  • First eligible for parole: 28 October 2025
  • Full term expires: 28 October 2026
  • Two Form 1 offences (larceny and stealing a motor vehicle) taken into account

Key Takeaways

  • Post-arrest conduct, even if uncharged, is relevant to the sentencing assessment of remorse and contrition. The District Court treated recorded gaol calls, in which the offender discussed paying off the victim to withdraw charges, as directly undermining any claimed rehabilitation or regret.
  • A guilty plea entered at committal attracted a 25% discount for utilitarian value alone, consistent with the applicable sentencing framework under the Crimes (Sentencing Procedure) Act 1999.
  • Where an offender's criminal history is extensive and offending occurred within days of commencing a Community Corrections Order, psychological evidence pointing to future prospects does not automatically reduce moral culpability in the court's assessment.
  • Special circumstances to extend parole were refused where the evidence of likely rehabilitation was considered insufficient, particularly in light of longstanding drug dependency and a pattern of rapid reoffending following release.
  • Coordinated schemes involving multiple participants, advance planning, and the exploitation of a victim's vulnerability will be treated as aggravating the seriousness of a dwelling-entry offence, even where the victim was not physically harmed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 111(1) (enter dwelling with intent), 117 (larceny), 154F (steal motor vehicle)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 32 (Form 1 procedure)

Cases cited: No cases were cited in the portions of the judgment provided.