Citation: R v Nean [2024] NSWDC 644
Court: District Court of New South Wales
Date: 18 November 2024
Judge: Bourke SC DCJ
Background
The offender, a 35-year-old First Nations man, appeared for sentencing on a charge of break, enter and steal under s 112(1)(a) of the Crimes Act 1900, which carries a maximum penalty of 14 years imprisonment. A further offence of attempting to dishonestly obtain a financial advantage by deception was placed before the court on a Form 1 document (a mechanism allowing a sentencing court to take additional admitted offences into account without recording a separate conviction). The offender had pleaded guilty at the earliest opportunity.
The substantive offence occurred in October 2023 at a large residential property in Whitebridge, while the owners were travelling interstate. The offender gained entry by smashing a lounge room window, ransacked most rooms in the house, and stole jewellery, currency, electronics, and a Porsche vehicle insured for $260,000. He also wrote himself a $5,000 cheque from the victims' chequebook during the break-in. Most stolen items, including the vehicle and jewellery, were later recovered.
The offender was arrested on 14 November 2023 following a search warrant executed at an address in Hamilton South. His time in custody since arrest was complicated by a concurrent parole revocation and a separate sentence imposed for another break-and-steal offence committed approximately one week after the offence under consideration.
Legal Issues
- What was the appropriate objective seriousness of the offence, and where did it sit on the sentencing range?
- What weight should be given to the offender's First Nations background, childhood trauma, and psychological circumstances as subjective matters?
- How should the 25% guilty plea discount be applied?
- How should the court approach backdating the sentence and apply the totality principle, given overlapping periods of custody arising from multiple matters?
Decision
Bourke SC DCJ assessed the offence as sitting slightly below the mid-range of objective seriousness. Aggravating features included the targeting of a residential home, the physical smashing of a window, the thorough ransacking of most rooms, and the substantial value of items taken. The court did not accept defence submissions that the offence was merely opportunistic or brief in duration, as there was no evidence either way on planning and the scale of the ransacking was inconsistent with a short incursion. The court declined to treat "financial gain" as a materially aggravating feature, noting it motivates the vast majority of offences of this type. General deterrence received significant weight given the prevalence of residential burglary and the serious psychological harm such offending causes to victims.
On subjective matters, the court had regard to the offender's First Nations heritage and the principles from Bugmy v The Queen [2013] HCA 37, which confirm that the effects of profound disadvantage on an offender's background and moral culpability are not diminished by any prior criminal history. A psychological report from Dr Thea Gumbert was before the court and was directed to be forwarded to Justice Health.
Applying the 25% discount for the early guilty plea and accounting for the Form 1 matter, the court arrived at a head sentence of 2 years and 11 months, with a non-parole period of 2 years.
On totality and backdating, the court declined to commence the sentence from the date of arrest (14 November 2023) in full. To do so would have meant the offence attracted no additional punishment beyond the existing sentence already running. Instead, the court commenced the sentence from 14 February 2024, three months after arrest, to ensure meaningful punishment for this offence while giving appropriate credit for time already served.
Orders Made
- Head sentence of 2 years and 11 months imprisonment, commencing 14 February 2024 and expiring 13 January 2027.
- Non-parole period of 2 years, commencing 14 February 2024 and expiring 13 February 2026.
- Direction that a copy of Dr Gumbert's psychological report be forwarded to Justice Health.
Key Takeaways
- The District Court assessed a residential break, enter and steal involving significant property damage, thorough ransacking, and high-value stolen items as sitting slightly below the mid-range of objective seriousness, in part because no substantial planning or sophistication was established.
- Under Bugmy v The Queen, the moral culpability of a First Nations offender with a background of profound disadvantage and trauma must be assessed with reference to that background, regardless of criminal history. The District Court applied this principle in weighing the subjective case.
- Financial gain does not ordinarily operate as a meaningful aggravating feature in break, enter and steal offences, since it is the motivation for the overwhelming majority of such crimes.
- Where an offender's pre-sentence custody spans multiple matters, including a parole revocation and a separate sentence, the totality principle may require the court to commence a new sentence at a date between the arrest date and the sentencing date, rather than fully backdating or commencing fresh.
- A 25% discount for a guilty plea entered at the earliest opportunity remains applicable in this jurisdiction, reflecting the utilitarian value of the plea to the criminal justice system.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 112(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 21A
Cases
- Bugmy v The Queen [2013] HCA 37
- Commonwealth DPP v De La Rosa [2010] NSWCCA 194
- Ponfield v R (1999) 48 NSWLR 327
- R v Millwood [2012] NSWCCA 2