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District Court 12 April 2024

R v BEAUCHAMP

[2024] NSWDC 109

Assault & violenceTheft & property
CRIME LARCENY AGGRAVATED IN COMPANY CLOSED BUT UNLOCKED DOOR SEARCHED FOR DRUGS

Citation: R v Beauchamp [2024] NSWDC 109
Court: District Court of New South Wales
Date: 12 April 2024
Judge: Lerve DCJ

Background

The offender was charged following an incident in the early hours of 24 October 2020 at a residential address in Junee, NSW. He and several co-offenders, including Tristan Lee and Zarah Hart, entered the victim's home through a closed but unlocked door. The group had originally gone to the premises intending to purchase methamphetamine from the victim, who had arranged to leave the door unlocked for that purpose. When the victim did not respond to messages, the group entered anyway.

Once inside, Lee struck the victim with a length of timber, causing lacerations that required eight sutures. The offender and others searched the bedroom for drugs, while Hart and another woman rummaged through the lounge room. A range of personal items, including mobile phones, a tablet, and small amounts of cash and tobacco, were taken from the premises. The offender was not armed and did not personally inflict any of the injuries on the victim.

After an aborted trial and a retrial commencing in August 2023, the offender pleaded guilty to one count of break and enter a dwelling house and commit a serious indictable offence (larceny) in circumstances of aggravation, namely being in the company of others. He also asked the court to take into account a charge of wounding in company on a Form 1 document.

  • What sentence was appropriate for the principal offence of aggravated break and enter with larceny, given the offender's role as a party to a joint criminal enterprise rather than as the primary aggressor?
  • How should the Form 1 wounding in company charge affect the sentence?
  • What discount applied for the late utilitarian plea of guilty?
  • How should the principles of parity apply, given co-offenders faced different charges reflecting different degrees of criminality?
  • What weight should be given to the offender's extensive criminal history, his background (including Bugmy factors and post-traumatic stress disorder), and the fact that he was on conditional liberty at the time of the offending?
  • How should the principle of totality interact with the existing sentence the offender was already serving?
  • Whether special circumstances existed to justify a departure from the standard non-parole ratio?

Decision

Lerve DCJ assessed the objective seriousness of the principal offence as moderately below mid-range, applying the reasoning in Hunter v R [2011] NSWCCA 141. Several features bore on that assessment: the offending occurred at residential premises in the early hours of the morning; it involved multiple co-offenders; and the entry was made through an unlocked door, meaning no physical damage was caused to the property. The larceny was characterised as opportunistic, and the property taken, while important to the victim, was not of substantial value.

The court recognised that the offender's role was significantly less culpable than that of co-offender Lee, who took a far more active part and who wielded the timber. The offender's liability rested on common purpose. The Form 1 wounding charge was taken into account in accordance with the guideline in Attorney General's Application No. 1 of 2002, increasing the sentence beyond what the principal offence alone would have warranted.

A 5% discount was applied for the utilitarian value of the guilty plea, reflecting the lateness of that plea after a trial had already aborted and a retrial commenced. The starting point of 3 years and 7 months was reduced to 3 years and 4 months after the discount.

Totality was a significant concern. The offender had been in custody since April 2021 and was already serving a sentence with a non-parole period expiring in August 2025. The court determined that a wholly concurrent sentence would be inappropriate given the nature of the offending, but took a pragmatic approach by commencing the new sentence on 11 March 2024, six months after the guilty plea. Special circumstances were found to exist, resulting in a 50:50 ratio between the non-parole period and the balance of term, well below the statutory norm. The court acknowledged the Bugmy factors (relating to the offender's background of disadvantage) and the offender's diagnosis of post-traumatic stress disorder as relevant to that finding, while noting that his lengthy criminal history did not attract any particular leniency.

Orders Made

  • The offender was convicted of one count of break and enter a dwelling and commit a serious indictable offence (larceny in company), contrary to the Crimes Act 1900.
  • Taking into account the Form 1 charge of wounding in company, the offender was sentenced to a total term of 3 years and 4 months.
  • Non-parole period: 1 year 8 months, commencing 11 March 2024 and expiring 10 November 2025.
  • Balance of term (parole): 1 year 8 months, commencing 11 November 2025 and expiring 10 July 2027.
  • The court recommended the offender's release to parole at the expiration of the non-parole period.
  • The total effective sentence being served runs from 12 April 2021 to 10 July 2027 (approximately 6 years 3 months). Actual time in custody, assuming release at the non-parole period expiry, runs from 12 April 2021 to 10 November 2025 (approximately 4 years 7 months), representing approximately 73% of the total effective sentence.

Key Takeaways

  • Opportunistic larceny during a break and enter at residential premises, where the offender participated as a party to a joint enterprise rather than as the primary aggressor, was assessed as moderately below mid-range objective seriousness on the facts of this case.
  • A late guilty plea entered during a retrial, after an earlier trial had aborted, attracted only a 5% utilitarian discount, consistent with the limited utilitarian value of such a plea.
  • Where co-offenders face materially different charges reflecting genuinely different levels of criminality, the parity principle does not compel identical outcomes; the court applied parity principles with reference to the differing roles and charges.
  • Bugmy considerations (the relevance of a background of profound disadvantage) and a diagnosis of post-traumatic stress disorder were treated as relevant to the finding of special circumstances, supporting an extended parole period despite the offender's significant criminal history.
  • Totality was a controlling consideration when imposing a sentence partly concurrent with an existing sentence, requiring the court to balance the need for some accumulation against the aggregate burden on the offender.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 (2002) 56 NSWLR 146 (Guideline Judgment on Form 1)
- Bugmy v The Queen [2013] HCA 37
- Dungay v R [2020] NSWCCA 209
- Hunter v R [2011] NSWCCA 141
- R v Boney [2008] NSWCCA 313