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District Court 28 February 2025

R v Dawson

[2025] NSWDC 166

Theft & property

Citation: R v Dawson [2025] NSWDC 166
Court: District Court of New South Wales
Date: 28 February 2025
Judge: Haesler SC DCJ

Background

The offender, a man born in 1985, had a deeply entrenched criminal history and had spent the vast majority of his adult life in custody. Following a period of genuine rehabilitation after his 2021 parole release, including reconnecting with family and obtaining employment, his circumstances deteriorated in early 2023 when he became homeless in the Wollongong area without NDIS support, despite being eligible for it due to a traumatic brain injury sustained at age 17.

Between April and May 2023, the offender committed a series of commercial break-and-enters, primarily targeting supermarkets and retail premises in the early hours of the morning. He used tools including sledgehammers, crowbars and angle grinders to force entry, stole cigarettes, cash and mobile phones, and operated using disguises and a stolen vehicle. A co-offender was involved, though their identity was suppressed pending a trial listed for May 2025.

The offender was arrested on 2 June 2023 and has remained in custody since. He accepted responsibility at an early stage in the Local Court, and the matter came before the District Court for aggregate sentencing across multiple charges, related Local Court matters transferred under s 166 of the Criminal Procedure Act, and a number of Form 1 offences.

  • What aggregate sentence appropriately reflects the objective seriousness of the multiple offences while remaining proportionate and avoiding a crushing outcome?
  • How should the court treat Form 1 matters and transferred Local Court charges within an aggregate sentencing exercise, including the application of Local Court jurisdictional limits?
  • What weight should be given to the offender's significant subjective circumstances, including traumatic brain injury, childhood trauma, drug addiction, institutionalisation, and genuine motivation to rehabilitate?
  • Whether special circumstances existed to justify a departure from the standard non-parole period ratio.
  • How should the 25% utilitarian discount for early guilty pleas be preserved through the accumulation process?
  • How to deal with two charges (failure to give particulars and possession of housebreaking implements) where further penalisation would amount to double counting.

Decision

His Honour imposed an aggregate sentence, having first assessed each individual offence before constructing an overall term. Each indicated sentence was reduced by 25% to reflect the utilitarian value of the early guilty pleas, and His Honour took care to ensure the accumulation process did not erode that discount.

On the two charges that might otherwise have attracted separate penalties, His Honour concluded that no additional punishment was warranted. The failure to give particulars of the driver was a fine-only offence and was dealt with under s 10A of the Crimes (Sentencing Procedure) Act. The possession of housebreaking implements was treated the same way, on the basis that the implements were the very tools used in the break-and-enters, meaning penalising the possession separately would constitute impermissible double counting.

His Honour acknowledged the significant weight of the offender's personal history, including childhood sexual abuse, poverty, institutionalisation, traumatic brain injury, and long-term drug addiction. Applying the High Court's approach in Bugmy v The Queen, those factors were given genuine mitigating weight. At the same time, the court found that the objective seriousness of the offences, the pattern of conduct, the breach of conditional liberty, and the need for both personal and general deterrence required meaningful custodial sentences.

Special circumstances were found, warranting a longer parole period than the standard ratio would produce. His Honour reasoned that a structured and supported transition to the community was critical given the offender's background, and that the sentence should not extinguish hope for a productive life after release.

Orders Made

  • Aggregate sentence of 5 years and 3 months, commencing 2 June 2023.
  • Non-parole period of 3 years and 3 months, commencing 2 June 2023, making the offender eligible for parole on 1 September 2026 (subject to the State Parole Authority being satisfied that community safety concerns can be met).
  • Parole period of 2 years, commencing 2 September 2026 and expiring 1 September 2028.
  • Finding of special circumstances.
  • 25% reduction applied to each indicated sentence for early guilty pleas.
  • Indicated sentences (in chronological order):
  • Sequence 43 (break, enter and steal, Woolworths Bowral, with Form 1 matters): 2 years and 7 months
  • Sequence 24 (take and drive conveyance): 11 months
  • Sequence 46 (break, enter and steal, Coles Engadine, with Form 1 matters): 2 years and 4 months
  • Sequence 29 (larceny, steal number plate, with Form 1 matter): 3 months
  • Sequence 50 (break, enter and steal, Woolworths Bomaderry, no Form 1): 1 year and 10 months
  • Sequence 20 (police pursuit): 9 months
  • Sequence 22 (use offensive weapon to prevent lawful detention): 1 year and 1 month
  • Sequence 5 (custody of knife in public place): 9 months
  • Licence disqualification of 2 years (minimum period) for Sequence 20, not to run during custody.
  • Sequences 21 (possess housebreaking implements) and 4 (failure to give particulars) dealt with under s 10A, Crimes (Sentencing Procedure) Act (no further penalty imposed).

Key Takeaways

  • Where possession of housebreaking implements is entirely subsumed by the facts of the break-and-enter offences themselves, penalising the possession charge separately risks impermissible double counting, and a s 10A order may be appropriate.
  • Under the guideline judgment in Attorney General's Application No 1 of 2002, taking Form 1 matters into account generally signals an additional need for personal deterrence and retribution, and the increase to the sentence for the principal offence can in some cases be substantial.
  • Subjective circumstances including traumatic brain injury, childhood abuse, institutionalisation, and drug addiction retain genuine mitigating force, even where an offender has an extensive criminal record, consistent with the High Court's approach in Bugmy v The Queen.
  • A finding of special circumstances justifying a longer parole period is available where the offender's background and rehabilitation prospects make structured community supervision particularly important on release.
  • The benefit of an early guilty plea discount must be actively preserved when constructing an aggregate sentence, so that the accumulation of individual terms does not in practice erode the reduction.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33B(1)(a), 51E, 112(1)(a), 114(1)(b), 117, 154(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 32 (Form 1)
- Criminal Procedure Act 1986 (NSW), ss 32, 166
- Summary Offences Act 1988 (NSW), s 11C(1)
- Road Rules 2014 (NSW), s 287(1)
- Children (Criminal Proceedings) Act 1987 (NSW)

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2013] NSWCCA 115
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- Dawson v R [2015] NSWCCA 236
- Engert v The Queen (1995) 84 A Crim R 67
- Mapp v R [2010] NSWCCA 269
- Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
- Ponfield v R [1999] NSWCCA 435; (1999) 48 NSWLR 327
- R v Herring (1956) 73 WN (NSW) 203
- R v Simpson [2001] N