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District Court 25 January 2024

R v Foster

[2024] NSWDC 2

DrugsTheft & propertyPublic order & justice offences
CRIME SIGNIFICANT CRIMINAL HISTORY DRUG USE ADDICTION ACCUMULATION TOTALITY

Citation: R v Foster [2024] NSWDC 2
Court: District Court of New South Wales
Date: 25 January 2024
Judge(s): Newlinds SC DCJ

Background

The offender, a 29-year-old man with an extensive criminal history, broke into the same occupied home twice within hours on the evening of 7 January and early morning of 8 January 2023, stealing a different Mercedes Benz on each occasion. He carried out the first break and enter alone. For the second, he returned with a co-accused, waiting outside as his companion entered the garage using keys taken in the first theft, making the offender an accessory before the fact to that second event.

Both offences were committed while the offender was on parole for earlier offending. His parole was revoked solely because of this new offending. A related drug possession offence, arising from a search warrant executed at his premises in connection with the break and enters, was also before the court.

The offender pleaded guilty in the Local Court. He was diagnosed with major depressive disorder, severe stimulant use disorder and severe opioid use disorder, and had experienced a difficult upbringing including childhood sexual abuse and significant trauma.

Legal Issues

  • What was the appropriate objective seriousness of the offending?
  • Whether, and to what degree, the multiple counts should be accumulated rather than served concurrently?
  • What weight should be given to the offender's subjective circumstances, including mental health, drug addiction, remorse and prospects of rehabilitation?
  • Whether special circumstances existed to justify departing from the standard non-parole period ratio?
  • How the time already spent in custody, which was jointly referable to both the fresh offending and the revoked parole, should be treated to avoid double punishment?

Decision

Objective Seriousness

The court assessed the offending as slightly below the mid-range for aggravated enter dwelling and steal motor vehicle offences (at [15]). Mitigating features included the largely opportunistic nature of the first offence, the absence of property damage, and the fact the victims remained asleep (at [14]). However, the second event involved a degree of planning, the use of keys taken in the first theft, and the recruitment of a co-accused, which elevated its seriousness compared to the first (at [13], [39]).

Starting Point and Plea Discount

The court set a starting point of 3 years imprisonment for each of the four offences (at [40]). Applying a 25 percent discount for the utilitarian value of the early guilty plea under section 25D(2) of the Crimes (Sentencing Procedure) Act 1999, the indicative head sentence for each offence became 2 years (at [41]-[42]).

Accumulation and Totality

The court accepted that the enter dwelling and motor vehicle theft offences arising from each event together constituted a single act of criminality, and that wholly concurrent sentences were not appropriate (at [47]). Relying on the principle in Grover v R [2013] NSWCCA 149 and the need to reflect the separate trauma inflicted on the victims by two distinct intrusions, the court imposed some accumulation between the two events. The aggregate sentence was set at 3 years, which also encompassed the drug offence (at [49]).

Subjective Circumstances and Special Circumstances

The court found that the offender's mental health conditions, difficult upbringing and long-term drug addiction reduced his moral culpability, even though his mental health was not a direct cause of the offending (at [35]). The court accepted some genuine remorse and a desire to change, supported by family backing and productive conduct in custody, while remaining guarded about his prospects of rehabilitation given his high risk of reoffending (at [25], [33]-[34]). The court found special circumstances existed, increasing the non-parole period to 30 percent of the head sentence rather than the standard proportion, to allow an extended period of supervision that would assist rehabilitation and address drug dependence (at [50]-[51]).

Backdating and Custody

To avoid double punishment arising from the revocation of the offender's parole, which was solely caused by this offending, the court commenced the sentence on 1 July 2023 rather than the date of sentence (at [54]-[55]).

Orders Made

  • Aggregate sentence of 3 years imprisonment imposed across all four matters, inclusive of the drug offence from the section 166 certificate.
  • A 25 percent discount applied for early guilty pleas.
  • Non-parole period of 2 years (representing 30 percent of the head sentence, reflecting a finding of special circumstances).
  • Sentence to commence 1 July 2023.
  • Earliest eligible parole date: 30 June 2025.

Key Takeaways

  • Where parole is revoked solely because of the offences being sentenced, that connection is a relevant factor in determining the commencement date of the new sentence, with the court having regard to the principle against double punishment articulated in Callaghan v R [2006] NSWCCA 58 (at [53]-[55]).

  • Wholly concurrent sentences remain generally inappropriate for multiple break and enter offences even when they form part of a single episode of criminal behaviour, consistent with the Court of Criminal Appeal's guidance in Grover v R [2013] NSWCCA 149 (at [22], [43]).

  • A combination of factors including a difficult upbringing, long-term drug addiction, mental health conditions and drug intoxication at the time of offending can reduce an offender's moral culpability, even absent a direct causal link between those conditions and the offending (at [35]).

  • Special circumstances justifying a variation to the standard non-parole period ratio can be established where an extended period of post-release supervision would materially assist an offender's rehabilitation from substance dependence and fragile mental health, consistent with R v Lunhan [2016] NSWCCA 287 (at [50]-[51]).

  • A lengthy criminal history of similar offending and a demonstrated failure of general deterrence through prior custodial sentences are significant factors that bear heavily on assessments of prospects of reoffending and the weight to be given to community protection (at [25]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 , ss 111( 2), 154F
- Crimes (Sentencing Procedure) Act 1999 , s25D(2)
- Drug Misuse and Trafficking Act 1985 , s 10(1)

Cases
- Cahyadi v R [2007] NSWCCA 1
- Callaghan v R [2006] NSWCCA 58
- Morrison v R [2022] NSWCCA 158
- R v Fidow [2004] NSWCCA 172
- R v Grover; Grover v R [2013] NSWCCA 149.
- R v Lunhan [2016] NSWCCA 287
- R v Primmer [2020] NSWCCA 50
- R v Lunhan [2016] NSWCCA 287