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District Court 27 June 2025

R v Wright

[2025] NSWDC 316

Assault & violenceTheft & property
JOINT CRIMINAL ENTERPRISE CONSIDERATION OF DE SIMONI PRINCIPLES

Citation: R v Wright [2025] NSWDC 316
Court: District Court of New South Wales
Date: 27 June 2025
Judge(s): Anderson SC DCJ

Background

The offender, a 23-year-old woman, was sentenced for two offences committed on 14 May 2024. The first was stealing a motor vehicle (s 154F, Crimes Act 1900), and the second was aggravated entry into a dwelling with intent to steal (s 111(2), Crimes Act 1900), the aggravating circumstance being that she knew a person was present.

The victim was a 77-year-old man who had a prior relationship with the offender. He invited her to his home late at night. She arrived at approximately 1am, and shortly afterwards three unknown co-offenders appeared at the door wearing dark clothing with their faces covered. Those co-offenders forced entry, held the victim down with a knife to his face, and stole items from the bedroom, including car keys. The offender drove the victim's car from the property with the co-offenders as passengers.

The offender pleaded guilty in the Local Court on the basis that she was a participant in a joint criminal enterprise with the three unknown co-offenders. At the time of the offences she was subject to a Community Corrections order for dishonesty offences.

Legal Issues

  • Whether the offender's criminal responsibility for the s 111(2) offence was complete upon entry to the premises, limiting the court's consideration of subsequent conduct by co-offenders (the De Simoni argument)
  • Whether the circumstances of aggravation under s 105A of the Crimes Act 1900 were applicable given the joint criminal enterprise
  • The appropriate weight to give to the offender's mental health, childhood deprivation, youth, and criminal history in assessing objective seriousness and moral culpability
  • Whether the threshold for imprisonment was crossed and whether an intensive corrections order was appropriate
  • The correct aggregate sentence, including the non-parole period, having regard to special circumstances

Decision

Issue 1: Joint criminal enterprise and the scope of criminal responsibility

The court rejected the submission that the offender's criminality was complete the moment she entered the premises, finding that submission inconsistent with a plea entered on the basis of a joint criminal enterprise (at [25]). The court found that the intent to commit larceny was continuing throughout the episode, and that the offender's conduct was occurring simultaneously with the co-offenders' violence and restraint of the victim (at [31]-[33]). The court distinguished the cases relied upon by the offender on the basis that they concerned the simpliciter form of the s 111 offence, not the aggravated version (at [28]).

Issue 2: Application of De Simoni principles and s 105A aggravating factors

The court accepted that the offender could not be sentenced as if she had committed aggravated break and enter or a home invasion (at [22]). However, the court held that several s 105A aggravating circumstances were applicable through the joint criminal enterprise, including being in company and the use of corporal violence, the latter arising from the co-offenders' conduct for which the offender bore shared responsibility (at [37]). The court did not take into account the offender's role in gaining entry through the flyscreen or the knife, accepting she would not necessarily have expected the co-offenders to be armed (at [44]).

Issue 3: Subjective factors and moral culpability

The court accepted the psychologist's report generally, finding that the offender's mental health conditions materially contributed to the offending and reduced her moral culpability, and that general deterrence played a lesser role as a result (at [72]-[75]). Her history of profound childhood deprivation and abuse was accepted as a further mitigating factor, also reducing moral culpability (at [77]-[78]). Her age of 23, while not making her a juvenile, entitled her to have immaturity considered as a mitigating factor (at [82]). The court did not accept the offender as genuinely remorseful, finding her accounts of drug use and mental health history were inconsistent and that she had denied responsibility in the sentencing assessment report (at [8], [63]).

Issue 4: Suitability for an intensive corrections order

The court concluded that an intensive corrections order was not appropriate. The objective seriousness of the two offences, the commission of the offences while on conditional liberty, and the offender's already lengthy criminal history each weighed against an ICO under s 66 of the Crimes (Sentencing Procedure) Act 1999 (at [91]). A finding of special circumstances was made, having regard to the offender's age, her first adult custodial experience, her mental health, and her need for drug rehabilitation in the community, leading to a non-parole period set at 50% of the head sentence (at [88]).

Orders Made

  • The offender was convicted of both offences (aggravated entry into a dwelling with intent to steal, and stealing a motor vehicle)
  • An aggregate sentence of 22 months imprisonment was imposed, commencing 22 December 2024 and expiring 21 October 2026
  • A non-parole period of 11 months was set, expiring 21 November 2025
  • A 25% discount was applied for the offender's early guilty plea
  • Indicative sentences: 18 months for the aggravated dwelling entry (Count 5); 12 months for the vehicle theft (Count 2)

Key Takeaways

  • A plea of guilty on the basis of joint criminal enterprise carries significant consequences at sentence: the District Court held that the offender bore responsibility for the co-offenders' continuing conduct, including their use of violence, because that conduct occurred in furtherance of the shared criminal purpose and was not severed by the moment of entry to the premises (at [26], [29]-[31]).

  • The De Simoni principle does not insulate a participant in a joint criminal enterprise from all consideration of co-offenders' conduct at sentence. Where an offender pleads to the aggravated form of a dwelling entry offence under s 111(2), the s 105A circumstances of aggravation may be engaged through the enterprise, provided the sentencing court does not punish for a more serious uncharged offence (at [22], [37]).

  • Cases interpreting the s 111 offence in its simpliciter form are not automatically applicable to the aggravated version: the court distinguished interstate and Victorian authorities as either irrelevant to the NSW provisions or confined to the un-aggravated offence (at [27]-[28]).

  • Accepted psychiatric evidence of multiple diagnoses, combined with a history of severe childhood abuse and deprivation, can materially reduce an offender's moral culpability even where the court finds the offender an unreliable historian. The two findings are not mutually exclusive (at [63]-[64], [75], [78]).

  • Objective seriousness, breach of conditional liberty, and a lengthy prior record can together defeat an application for an intensive corrections order even when the aggregate head sentence falls below three years (at [91]).

Legislation and Cases Referenced

Legislation
- Criminal Code 1995 (Cth)
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Dacre v The Queen (2018) 57 VR 285
- Huhyn v The Queen [2005] NSWCCA 220
- R v De Simoni (1981) 147 CLR 383
- R v Dugan [1984] 2 NSWLR 554
- The Queen v Delphin (2001) 79 SASR 429