Citation: R v Lawlis [2024] NSWDC 418
Court: District Court of New South Wales
Date: 12 September 2024
Judge: Abadee DCJ
Background
The offender pleaded guilty to two counts of aggravated break and enter and committing a serious indictable offence under s 112(2) of the Crimes Act 1900 (NSW), each carrying a maximum penalty of 20 years imprisonment and a standard non-parole period of five years. The offending involved two separate residential burglaries in November 2020 and January 2021, both committed in the early hours of the morning alongside multiple co-offenders, and both directed at stealing motor vehicles.
In the first incident, the group entered a garage in Illawong and stole three motorcycles valued at a combined $23,000. In the second incident, the group forced entry to a West Hoxton property and stole a Volkswagen Golf valued at $48,000, with the offender participating in planning and later receiving proceeds, though he did not personally enter the premises on that occasion. A police investigation, Strike Force Swete, connected the offender and his co-offenders across both incidents through mobile phone records, CCTV footage, and intercepted communications.
The offender also pleaded guilty on a s 166 certificate to four related offences: three counts of stealing a motor vehicle and one count of taking a conveyance without consent. Pleas across all counts were entered ten days before the scheduled trial commencement.
Legal Issues
- What guilty plea discount applied where pleas were entered ten days before the scheduled trial date
- How to assess the objective seriousness of the aggravated break and enter offences, having regard to the Ponfield guideline judgment
- How to apply the parity principle given that five co-offenders had already been sentenced
- How to structure cumulation and concurrence across the principal counts and the s 166 certificate offences to achieve an appropriate total sentence
Decision
Abadee DCJ held that the statutory scheme under s 25D(2)(b)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW) governed the guilty plea discount. Because the pleas were entered ten days before trial, the offender was entitled to a five percent discount only. The court rejected the offender's submission that a greater discount was available, preferring the Crown's position that the elaborately calibrated statutory regime was determinative.
On objective gravity, the court applied the Ponfield guideline, noting subsequent authority confirming its relevance to s 112(2) offences. Both incidents involved a moderate degree of pre-planning, multiple co-offenders, entry to occupied residential premises at night, and theft of vehicles of meaningful value. The second offence was treated as somewhat more serious, partly because it involved forced entry to the residence itself and the theft of a higher-value vehicle.
The parity principle was considered in light of the sentences imposed on the five co-offenders. The court calibrated the offender's sentence to avoid unjustifiable disparity, while accounting for differences in individual culpability and subjective circumstances. The court gave significant weight to the offender's progress toward rehabilitation, including engagement with a psychologist and reduction in drug use, finding special circumstances that warranted a longer parole period than the statutory default.
On totality, the court held that some cumulation between counts 1 and 2 was warranted given the two incidents were separated by approximately two months. Concurrent or near-concurrent terms applied to the s 166 certificate offences, which represented the fruits of the primary offending, though some accumulation within those offences recognised the individual significance of each stolen vehicle to its owner.
Orders Made
- The offender was convicted on both counts of aggravated break and enter and committing a serious indictable offence (counts 1 and 2), and on sequences 2, 3, 6 and 10 on the s 166 certificate
- Aggregate term of imprisonment of 3 years and 4 months, commencing 12 September 2024 and expiring 11 January 2028
- Non-parole period of 1 year and 8 months, expiring 11 May 2026, after which the offender is eligible for release on parole
Key Takeaways
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Under the statutory guilty plea discount scheme in the Crimes (Sentencing Procedure) Act 1999, a plea entered ten days before the scheduled trial date attracts a five percent discount only, and the court will not depart from the calibrated statutory regime to award a greater reduction.
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The R v Ponfield guideline judgment on s 112(1) of the Crimes Act remains relevant to the objective gravity assessment of aggravated offences under s 112(2), as confirmed by the Court of Criminal Appeal in Marshall v R.
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Where multiple co-offenders have already been sentenced, the parity principle requires the sentencing court to identify and account for differences in individual culpability and subjective circumstances, rather than simply adopting a comparable sentence.
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Offences attached on a s 166 certificate that represent the proceeds of principal offending warrant substantial concurrence with those principal counts, though some accumulation remains appropriate to reflect the individual impact of each offence on the respective victims.
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A finding of special circumstances can extend the parole period beyond the statutory default where there is genuine evidence of rehabilitation progress, including reduced drug use and sustained psychological engagement.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 112(1), 112(2), 154A(1), 154F
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5(1), 21A(2), 25D(2)
- Criminal Procedure Act 1986 (NSW), s 166
Cases
- Bugmy v The Queen (2013) 249 CLR 571
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1
- KT v R [2008] NSWCCA 51
- Marshall v R [2007] NSWCCA 24
- R v Ponfield & Ors (1999) 48 NSWLR 327