Citation: R v Hearn; R v Paese [2025] NSWDC 228
Court: District Court of New South Wales
Date: 23 April 2025
Judge: J Smith SC DCJ
Background
Two co-offenders, referred to here by their roles as the first and second offender, pleaded guilty in the Local Court to one count of specially aggravated break and enter under section 113(3) of the Crimes Act 1900 (NSW), an offence carrying a maximum penalty of 20 years imprisonment. Both maintained their pleas in the District Court and received a 25% discount for the utilitarian value of those pleas.
The offending occurred late at night on 18 February 2024 at a residential property in Berkeley. The two offenders and an unidentified third person jumped the front fence, attempted to force entry through the front door, and ultimately broke through a rear entrance. One offender was carrying an object that resembled a rifle, which was used to smash glass panels. The occupant of the premises suffered lacerations to his arms from broken glass. All three offenders wore masks and hoods, and a duffle bag and a large kitchen knife were left behind when they fled.
The offending lasted no more than two minutes. Both offenders were apprehended approximately 45 minutes later and taken into custody. The agreed facts were identical for each co-offender, and the court assessed their objective culpability as equal on the basis that all conduct occurred within a joint criminal enterprise.
Legal Issues
- What was the appropriate sentence for each co-offender for specially aggravated break and enter, having regard to the objective seriousness of the offence?
- How should the joint criminal enterprise principle apply where co-offenders played different physical roles during the offending?
- What weight should be given to youth, ADHD, neurodiverse traits, and other subjective factors in mitigation?
- Was an intensive corrections order (ICO) an appropriate means of serving the sentence, having regard to community safety and the prospects for rehabilitation?
Decision
Objective seriousness and joint criminal enterprise
His Honour found that the objective seriousness was identical for both offenders despite their different physical roles. Because everything each did formed part of a joint criminal enterprise, one offender's knowledge that the other carried the imitation rifle, and that it would be used in the break and enter, was sufficient to fix him with equal culpability. The court identified several features bearing on objective seriousness: the intended commission of larceny; the presence of three offenders and two weapons (though the knife was never wielded); the fact that the dangerous weapon was an imitation rifle, capable of causing fear but not physical harm; the nighttime timing when occupants were likely present; and the modest but real level of prior planning. The offence was committed in the victim's home, an aggravating factor applicable to both offenders.
Subjective case for the first offender
The first offender had a significant body of psychological and psychiatric evidence before the court. Two psychologists reported ADHD diagnoses confirmed by a treating psychiatrist, and assessments revealed neurodiverse traits including autism-related features that fell short of a formal autism diagnosis, alongside gullibility masked by self-assurance. His Honour accepted that these conditions, combined with the offender's youth, impulsivity, and substance use on the night (alcohol and cocaine), diminished his capacity to appreciate consequences and resist peer influence. Since his release from custody in March 2024, the first offender had engaged consistently with medication and psychological treatment, with both treating practitioners reporting marked improvement in insight and functioning. He had also remained in stable employment and continued drug rehabilitation work. His Honour found genuine remorse and a low to moderate risk of reoffending.
Subjective case for the second offender
The second offender presented a more complex subjective background. He came from a severely deprived upbringing involving family involvement with drugs and crime, significant childhood trauma, and multiple adverse diagnoses including ADHD, probable ASD, an intellectual disability placing him in the borderline range, and post-traumatic stress disorder. His Honour applied the principles from R v Fernando (concerning Aboriginal offenders and disadvantage), noting that the second offender's grossly deprived background was highly relevant to the exercise of the sentencing discretion. Since his release on bail, he had engaged with support services and shown improvements consistent with the structural support now available to him. His Honour found genuine remorse and a low risk of reoffending in a structured environment.
Sentence and mode of service
His Honour sentenced each offender to 1 year and 10 months imprisonment. On the question of how that sentence should be served, the court held that community safety was the paramount consideration and found that both offenders had taken meaningful steps toward rehabilitation that would best continue in the community rather than in custody. Accordingly, each sentence was ordered to be served by way of an intensive corrections order, with conditions requiring participation in rehabilitation programs directed by Community Corrections and abstention from non-prescribed drugs.
Orders Made
For each offender:
- Conviction: The offender is convicted of the offence.
- Sentence: 1 year and 10 months imprisonment.
- Mode of service: Pursuant to section 7(1) of the Crimes (Sentencing Procedure) Act 1999, the sentence is to be served by way of an intensive corrections order (ICO), commencing 23 April 2025 and expiring 22 February 2027.
- Standard conditions: No commission of any offence; submission to supervision by a Community Corrections Officer.
- Additional conditions:
- Participation in and maintenance of any programs and treatment required or facilitated by the Office of Community Corrections for so long as that service deems necessary.
- Abstention from all drugs other than those prescribed by a medical practitioner for the duration of the sentence.
- Warning: Non-compliance may result in formal warning, more stringent conditions, or revocation of the ICO, potentially requiring the offender to serve the remaining period in full-time custody.
Key Takeaways
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Under the joint criminal enterprise principle, co-offenders may attract equal objective culpability even where their physical roles differ, provided each offender knew of and participated in the shared criminal purpose, including awareness of weapons to be used.
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Neurodevelopmental conditions such as ADHD and autism-related traits, when supported by detailed psychological and psychiatric evidence, can carry significant mitigatory weight, particularly where they are found to have diminished an offender's capacity to appreciate consequences and resist peer influence.
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A grossly deprived background, including childhood exposure to family dysfunction, trauma, and criminality, remains a relevant consideration in mitigation at sentencing, consistent with the principles confirmed in R v Fernando and applied here to an offender of Indigenous background.
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The District Court found that an intensive corrections order was appropriate in circumstances where both offenders had already served custody on remand, had demonstrated genuine and measurable rehabilitative progress since release, and where a return to full-time custody was assessed as likely to impede rather than advance rehabilitation.
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Where sufficient subjective material is already before the court and the offenders have been subject to custody and strict bail conditions, the court may decline to order a pre-sentence assessment report before imposing an ICO.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 113(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 7, 21A
Cases
- Aslan v R [2014] NSWCCA 114
- BAP v R [2024] NSWCCA 206
- BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159
- DB v R [2023] NSWCCA 323
- DPP v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51
- Lonsdale v R [2020] NSWDC 267
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
- R v Fernando (1992) 76 A Crim R 58
- R v Griggs (2000) 111 A Crim R 233; [2000] NSWCCA 33
- R v MJ [2023] NSWCCA 306
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