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District Court 18 July 2024

R v Simon

[2024] NSWDC 496

DrugsTheft & propertyTraffic & driving

Citation: R v Simon [2024] NSWDC 496
Court: District Court of New South Wales
Date: 18 July 2024
Judge(s): Sutherland SC DCJ

Background

The offender pleaded guilty to six counts on indictment arising from a series of offences committed in the Forster-Tuncurry area of New South Wales between March and September 2022. The offences included two counts of aggravated break, enter and steal, one count of break, enter and steal, two counts of driving a conveyance without the owner's consent, and one count of reckless driving while being pursued by police. Three further offences were placed on Form 1 documents (meaning the court took them into account when sentencing on the attached principal counts without recording separate convictions), and a related summary offence of driving while unlicensed was also before the court.

The pattern of offending centred on the Dorsal Boutique Hotel in Forster, a private villa in the Tuncurry area, an apartment complex in Little Street Forster, and surrounding streets. In several instances the offender entered occupied premises, stole vehicle keys, and then drove the stolen vehicles away. On one occasion, he led police on a pursuit through residential streets before abandoning the vehicle. DNA evidence linked the offender to multiple scenes.

The offending was carried out to fund the offender's dependence on methamphetamine ("ice"). He had an extensive criminal history, including numerous prior offences of a similar nature.

  • What guilty plea discount was appropriate given the late timing of the pleas?
  • How should the offender's methamphetamine addiction and deprived background be weighed under the principles in Bugmy v The Queen (which recognises that severe childhood deprivation can moderate moral culpability even for repeat offenders)?
  • What weight should be given to expressed remorse where the offender's statements to psychologists about his regret appeared inconsistent with the record of remorse in his pre-sentence assessment report (SAR)?
  • How should specific and general deterrence be calibrated for a persistent break-and-enter offender with a lengthy prior record?
  • How should the aggregate sentence be structured across six counts, including the commencement date, given the offender had been bail refused on other matters?

Decision

Guilty plea discount. The pleas were entered late, after the presentation of an amended indictment at Taree District Court in February 2024, some time after the offences in 2022. The court applied a discount of only 5% to most counts, reflecting the lateness of the pleas. A more generous 25% discount was applied to Count 2 (reckless driving while pursued), which was treated differently given the circumstances of that particular plea.

Bugmy factors and addiction. The court acknowledged the relevance of the Bugmy principles, which require a sentencing court to take into account the effects of profound childhood deprivation on an offender's moral culpability. However, the court also applied the principle from R v Ponfield that where an offender has repeatedly offended and been sentenced, the mitigating force of background disadvantage and addiction may diminish over time. The offender's extensive prior record, including many similar offences, reduced the weight that could be given to these factors in moderating the sentence.

Remorse. The offender had expressed remorse to psychologists who prepared reports for the sentencing proceedings. However, the court noted that this expression of remorse was contradicted by the record of remorse contained in his SAR. The court did not treat the expressions of remorse as carrying significant mitigating weight in these circumstances.

Deterrence and the aggregate sentence. Given the nature of the offending, the repeat nature of the conduct, and the need to protect the community, the court placed weight on both specific and general deterrence. An aggregate sentence of 4 years imprisonment was imposed, with a non-parole period of 2 years and 6 months. The court fixed a commencement date of 6 March 2023, which was 3 months before the expiry of an earlier 9-month sentence being served at that time. This reflected the court's view that, absent the bail refusal on these matters, a non-parole period on the earlier sentence would likely have extended by approximately that period.

Orders Made

  • Count 1 (aggravated break, enter and steal, Dorsal Boutique Hotel, with Form 1): indicative sentence of 2 years 4 months; indicative non-parole period of 18 months.
  • Count 2 (reckless driving while pursued by police): indicative sentence of 18 months.
  • Count 3 (aggravated break, enter and steal, villa, with Form 1): indicative sentence of 2 years 4 months; indicative non-parole period of 18 months.
  • Count 4 (drive conveyance without owner's consent): indicative sentence of 1 year 10 months.
  • Count 5 (break, enter and steal, Little Street Forster, with Form 1): indicative sentence of 23 months.
  • Count 6 (drive conveyance without owner's consent): indicative sentence of 22 months.
  • Aggregate sentence: 4 years imprisonment.
  • Non-parole period: 2 years 6 months.
  • Sentence commences: 6 March 2023.
  • Eligible for release on parole: 5 September 2025.
  • Additional term expires: 5 March 2027.
  • Summary offence (driving whilst unlicensed, s 166 matter): conviction recorded, no further penalty pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999.

Key Takeaways

  • The District Court applied a 5% guilty plea discount across most counts, reflecting the late stage at which the pleas were entered, well after the 2022 offending and only upon presentation of an amended indictment.
  • Under the Bugmy principles, deprived background and addiction remain relevant mitigating considerations at sentence even for repeat offenders, but their weight diminishes where the offender has been sentenced many times before and has continued to reoffend in similar ways.
  • Where an offender's expressions of remorse to psychologists are inconsistent with the record in a pre-sentence assessment report, a sentencing court may give little mitigating weight to those expressions.
  • An aggregate sentencing approach permits the court to structure a just overall sentence across multiple counts without simply accumulating each individual indicative term, ensuring the total term is proportionate to the overall criminality.
  • For persistent property offenders motivated by drug addiction, both specific and general deterrence remain significant sentencing considerations, even where background disadvantage is acknowledged.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), including ss 10A and 166 (via Criminal Procedure Act 1986)
- Crimes Act 1900 (NSW): ss 51B(1), 112(1)(a), 112(2), 154A(1)(a), 154A(1)(b), 195(1)(a)
- Criminal Procedure Act 1986 (NSW), s 166
- Road Transport Act 2013 (NSW), s 53(1)(a)

Cases
- Bugmy v The Queen [2013] HCA 387; (2013) 249 CLR 571
- R v Ponfield (1999) 48 NSWLR 327
- R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369