Citation: R v Hurley [2025] NSWDC 406
Court: District Court of New South Wales
Date: 13 May 2025
Judge: Bourke SC DCJ
Background
The offender, Michael Hurley, appeared for sentencing on two substantive offences committed in Tamworth in late March and early April 2024. Both offences involved breaking and entering with intent to steal, but arose from distinct incidents.
The more serious offence (sequence 6) occurred in the early hours of 1 April 2024. The offender, armed with a crowbar, removed a flyscreen and entered a home in Hilda Lane while a woman and her children slept inside. He spent approximately an hour inside the premises, stealing a moneybox, cash, a football jersey, and pain medications. He was identified through DNA left on a drinking can he had consumed inside the house.
The second substantive offence (sequence 9) occurred on 31 March 2024. CCTV captured the offender and another male approaching a property in Edgeroy Street, Tamworth, and breaking into a secured shed at the rear. The homeowners were not present. No items were described as stolen. The offender's DNA was recovered from the scene. Four additional offences were taken into account on a Form 1 document, including receiving a stolen motor vehicle, unauthorised possession of a firearm, entering land armed with intent, and being carried in a stolen vehicle.
Legal Issues
- What was the appropriate objective seriousness of each substantive offence, particularly the aggravated break and enter of an occupied dwelling?
- How should the Form 1 matters, three of which originated in the Local Court, affect the sentence?
- What discount applied for early guilty pleas?
- How should totality principles apply when imposing an aggregate sentence for two separate offences committed in close temporal proximity?
- What was the appropriate commencement date for the sentence, given that the offender had been in custody since his arrest on 2 April 2024 and his parole for earlier offences had been revoked on 25 March 2024?
Decision
His Honour assessed the sequence 6 offence as the most serious matter before the court. The presence of the female homeowner and her children during the break-in substantially elevated the risk of a frightening confrontation. The offender was armed with a crowbar and remained inside the premises for approximately one hour. However, the underlying offence was larceny, which sits at or near the lowest end of serious indictable offences, the property stolen was of limited value, and there was no significant damage to the premises. His Honour assessed the objective seriousness of the sequence 6 offence as below the mid-range but not in the low range.
The sequence 9 offence, involving a break-in to an outbuilding in company, was treated as less serious. The homeowners were absent, no property was taken, and the circumstances were less threatening than the sequence 6 offence.
A 25 per cent discount was applied to reflect the utilitarian value of the early guilty pleas. His Honour also took into account the Form 1 matters, noting that three of them (sequences 1, 2, and 7) had come to the District Court via s 166 of the Criminal Procedure Act 1986 and would have been subject to the Local Court's two-year jurisdictional limit had they been dealt with as substantive offences. Applying the principle from Attorney-General's Application No 1 of 2002, those Form 1 matters were treated as carrying a notional maximum of two years. The psychological report was also considered in the sentencing exercise and a direction was made for it to be provided to Corrective Services and Justice Health.
On totality, His Honour found that although the two substantive offences were committed in close temporal proximity, they involved separate decisions and distinct criminal incursions. Some degree of notional accumulation was therefore warranted in setting the aggregate sentence. Regarding commencement, His Honour declined to backdate the sentence fully to the date of arrest (2 April 2024), as the offender's time in custody from that date was partly attributable to the revocation of parole on 25 March 2024 for earlier offences rather than solely to the current matters. A partial backdate of approximately eight months was considered appropriate.
Orders Made
- Aggregate head sentence of three years and two months, commencing 12 September 2024 and expiring 11 November 2027.
- Non-parole period of two years and two months, expiring 11 November 2026.
- Indicative sentence for sequence 6: head sentence of two years and two months, non-parole period of one year and nine months.
- Indicative sentence for sequence 9: one year and ten months.
- Direction that the psychological report of Ms Manoski be provided to Corrective Services and Justice Health.
- Recommendation that the offender receive favourable consideration for inclusion in programs referred to in paragraph 46 of the psychological report.
Key Takeaways
- A break and enter of a dwelling house while occupants are asleep, committed by an offender who remains inside for approximately one hour while armed, falls below the mid-range of objective seriousness for s 112(2) of the Crimes Act 1900, but not in the low range, even where the underlying theft is modest and damage minimal.
- Where Form 1 matters originated in the Local Court under s 166 of the Criminal Procedure Act 1986, the District Court applies the principle from Attorney-General's Application No 1 of 2002 and treats those matters as carrying a notional maximum of two years imprisonment, reflecting the jurisdictional limit that would have applied.
- Temporal proximity between offences does not, of itself, eliminate the need for notional accumulation in an aggregate sentence; separate decisions and distinct criminal incursions can justify some additional accumulation in the interest of proportionality.
- Backdating a sentence to the date of remand is not automatic where the offender's time in custody is attributable in part to the revocation of parole for earlier offences: the sentencing court retains a discretion to partially backdate.
- Early guilty pleas attracting the maximum 25 per cent utilitarian discount remain a significant mitigating factor, even where the offending is objectively serious.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 112(2), 113(2)
- Criminal Procedure Act 1986 (NSW), s 166
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 37
Cases:
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- Bugmy v R (2013) 249 CLR 571
- R v VR [2025] NSWCCA 36
- TM v R [2023] NSWCCA 185