Citation: R v Rogers [2024] NSWDC 1
Court: District Court of New South Wales
Date: 25 January 2024
Judge(s): Newlinds SC DCJ
Background
The offender, a 26-year-old man, pleaded guilty to charges arising from events on 8 and 13 January 2023. The principal offence involved entering residential premises at Taren Point with a co-offender, Matthew Foster, and stealing a Mercedes-Benz motor vehicle. Additional matters dealt with on a Form 1 and a section 166 certificate included dishonestly obtaining petrol, a second petrol theft involving a different vehicle, three counts of driving whilst disqualified, and possession of number plates not attached to the correct vehicle.
The offender committed the principal offence while on parole for a prior police pursuit offence. His parole was revoked solely because of the present offending, and he was taken to have served the balance of that parole by 24 February 2023. From that date, a further 333 days in pre-sentence custody were referable solely to the current charges.
Newlinds SC DCJ sentenced the offender on the same day as his co-offender, Matthew Foster, and the reasons in both matters are intended to be read together.
Legal Issues
- What objective seriousness should be assigned to the aggravated enter dwelling and steal motor vehicle offences?
- What weight should be given to the offender's subjective circumstances, including his deprived upbringing, drug addiction, and diagnosed mental health conditions?
- How should the principle of parity with the co-offender's sentence be applied?
- Whether special circumstances exist to justify departing from the standard non-parole period ratio, in order to promote rehabilitation and reduce reoffending risk?
Decision
Objective seriousness: The court assessed the objective seriousness of the offending as slightly below the middle of the range but, on reflection, placed it toward the middle given the element of premeditation involved. The offender and co-offender drove deliberately to the property with the intention of breaking in, and the offender disguised himself in a "burglar-type outfit" before entering (at [14]). The court rejected the suggestion in the Sentencing Assessment Report that the offender merely thought he was going for a drive (at [14]).
Subjective circumstances: The offender's background included exposure to domestic violence from a young age, homelessness between ages 14 and 18, leaving school at year 6, and commencing drug use at age 14 in circumstances the court found could not fairly be characterised as a free choice (at [27]). The court accepted that these circumstances, combined with a diagnosis of ADHD, generalised anxiety disorder, major depressive disorder, substance use disorder, and gambling disorder, significantly lessened his moral culpability (at [28], [31]). The court accepted that the offender had shown genuine, if imperfect, remorse, and held some cautious optimism about his rehabilitation prospects, noting that the critical variable was whether he could remain drug-free (at [21], [33]).
Parity with co-offender: The court found no basis for meaningful distinction between the offender and the co-offender in terms of objective seriousness or overall subjective circumstances, noting that while the co-offender had a more serious criminal record, those factors balanced out against other considerations (at [41]-[42]). Accordingly, the court imposed the same indicative sentence of 2 years imprisonment for each of the aggravated enter dwelling and steal motor vehicle offences, after a 25 percent discount for the early guilty plea (at [43]).
Special circumstances: The court accepted that special circumstances existed and increased the non-parole proportion to 30 percent, rather than the standard ratio, to allow for a longer period of supervised post-release support (at [49]). The court treated the two principal offences as a single course of criminal conduct and imposed an aggregate head sentence of 2 years, with a non-parole period of 1 year and 5 months, backdated to 25 February 2023 (at [46], [50]).
Orders Made
- Aggregate sentence of 2 years imprisonment imposed, with a non-parole period of 1 year and 5 months.
- Sentence backdated to commence 25 February 2023.
- First date eligible for parole: 24 July 2024.
- Form 1 and section 166 certificate matters taken into account in the aggregate sentence.
Key Takeaways
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Premeditation is a significant factor in assessing objective seriousness for dwelling entry offences: the District Court rejected the characterisation of the offending as opportunistic where the offender had deliberately travelled to the premises, equipped himself with a disguise, and entered with a clear criminal purpose (at [14]).
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A deprived upbringing, early-onset drug dependency not freely chosen, and diagnosed mental health conditions can each reduce moral culpability in sentencing, even where they do not excuse the conduct (at [27]-[28], [31]).
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Drug addiction is treated as an explanation for offending, not an excuse, and prospects of rehabilitation are assessed primarily by reference to prospects of sustained drug abstinence (at [20]-[21]).
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Special circumstances were established where a longer period of post-release supervision was considered necessary to support the offender's rehabilitation, resulting in an increase of the non-parole proportion to 30 percent (at [47]-[49]).
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Applying the parity principle, where two co-offenders present materially equivalent subjective and objective circumstances, imposing equivalent sentences is appropriate even if particular factors point in different directions on each side (at [41]-[42]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 , ss 111(2), 192E(1)(a), 154J(1)
- Crimes (Sentencing Procedure) Act 1999 , ss 201A(3), 21A(2)(j), 21A(2)(e),(eb)
- Road Transport Act 2013 , s 54(1)(a)
Cases
- Bugmy v The Queen [2013] HCA 37
- O’Grady v R [2013] NSWCCA 281
- R v Elphick [2002] NSWCCA 273
- R v Hayes (1984) 1 NSWLR 740
- R v Simpson (2000) NSWLR 70