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District Court 24 April 2025

R v LITTLE

[2025] NSWDC 138

Theft & property
CRIME PROPERTY OFFENCES JUVENILE CO OFFENDERS PAST BRAIN INJURY PRINCIPLES IN BUGMY ENLIVENED

Citation: R v Little [2025] NSWDC 138
Court: District Court of New South Wales
Date: 24 April 2025
Judge: Lerve DCJ

Background

The offender, a 28-year-old man, pleaded guilty to a series of property offences arising from a coordinated crime spree in the early hours of 12 December 2023 in and around Wagga Wagga. He and two juvenile co-offenders travelled across an approximately 21-kilometre radius, targeting occupied residential premises and rural properties over the course of roughly three hours.

The offences included multiple counts of aggravated break, enter and steal (where the aggravating circumstance was either being in company or knowing persons were present), aggravated break and enter with intent, entering land and buildings with intent to commit an indictable offence, and entering dwellings in company with intent to steal. Across the various properties, motor vehicles, keys, wallets, and other personal property were taken. Two additional charges of being carried in a stolen conveyance were dealt with by way of certificate.

The pleas were entered at Wagga Wagga Local Court on 11 December 2024 and confirmed at the District Court on 26 March 2025, entitling the offender to the full 25 per cent utilitarian discount for guilty pleas.

  • The appropriate aggregate sentence for multiple serious property offences committed in a single continuing episode
  • The weight to be given to the offender's history of brain injury and associated deficits in executive functioning (raising the principles in Bugmy v The Queen)
  • Whether the circumstance of aggravation (being in company versus knowing persons to be present) affected the relative seriousness of individual offences
  • Whether a finding of special circumstances was warranted to adjust the ratio between the non-parole period and the balance of term
  • The role of parity with the juvenile co-offenders in setting the sentence

Decision

Lerve DCJ assessed each offence individually before arriving at an aggregate sentence. The three counts of aggravated break, enter and steal contrary to s 112(2) of the Crimes Act 1900 each carried a maximum of 20 years and a standard non-parole period of five years. The remaining offences under ss 111(2), 113(2), and 114(1)(d) carried maximum penalties of between seven and fourteen years. Her Honour placed the majority of offences below the mid-range of objective seriousness, noting that the aggravating circumstance of being in company is generally regarded as the least serious of the available aggravating factors.

The offender's past brain injury was a significant mitigating consideration. Although there was no overt intellectual disability, the court accepted that the injury had produced deficits in executive functioning. This engaged the principles established by the High Court in Bugmy v The Queen [2013] HCA 37, which recognise that cognitive and neurological disadvantage affecting impulse control and decision-making can reduce moral culpability, and that this consideration does not diminish over time. The court applied those principles to moderate the overall sentence.

On parity, the court found that it had little work to do in the circumstances. The co-offenders were juveniles and their sentencing outcomes were not meaningfully comparable to those applicable to an adult. The offender's moral culpability was assessed on its own terms.

Special circumstances were found to exist, justifying a non-parole period lower than the standard 60 per cent of the total sentence. Contributing factors included the need for an extended period of supervised parole to support the offender's rehabilitation, as well as the partial accumulation of the sentence on an existing parole balance.

Orders Made

  • The offender was convicted on all charges to which he pleaded guilty.
  • On the two charges of being carried in a stolen conveyance (dealt with by s 166 certificate), the offender was convicted and no further penalty was imposed.
  • An aggregate sentence of 5 years was imposed, with a non-parole period of 3 years.
  • The non-parole period runs from 21 August 2024 and expires on 20 August 2027.
  • The balance of term (2 years) runs from 21 August 2027 and expires on 20 August 2029.
  • The court recommended the offender's release to parole at the expiration of the non-parole period.
  • The total effective sentence (including time on remand from 21 February 2024) is 5 years and 6 months, with actual time in custody of 3 years and 6 months (assuming release at the end of the non-parole period).
  • The Form 1 matter was taken into account when sentencing the relevant sequence.

Key Takeaways

  • The District Court confirmed the application of Bugmy principles where a history of brain injury produces cognitive deficits, such as impaired executive functioning, even in the absence of a formal intellectual disability diagnosis. Such deficits can reduce moral culpability and do not lose their mitigating force over time.

  • A finding of special circumstances under the Crimes (Sentencing Procedure) Act 1999 justified reducing the non-parole period to 60 per cent of the total aggregate sentence. The court accepted this ratio was lower than ordinarily appropriate, but was warranted by the rehabilitation considerations and the mechanics of partial accumulation.

  • Where co-offenders are juveniles, parity principles have limited application because the sentencing regimes for adults and juveniles are materially different. The adult offender's sentence falls to be assessed primarily on individual culpability.

  • Being in company, as a circumstance of aggravation under s 105A of the Crimes Act, is generally treated as the least serious of the available aggravating circumstances. Courts will nonetheless assess an offender's role in the overall joint criminal enterprise, including participation that falls short of physically entering the premises.

  • Participating in a coordinated, multi-property crime spree over several hours at occupied residential premises, even where individual offences are assessed below mid-range, can sustain an aggregate sentence at a level that reflects the totality of the criminal conduct.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 111(2), 112(2), 113(2), 114(1)(d), 105A
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW), ss 166, 10A

Cases
- Bugmy v The Queen [2013] HCA 37
- Hunter v R [2011] NSWCCA 141
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- R v Harris [2007] NSWCCA 130
- R v Merrin [2007] NSWCCA 255