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R v Debortoli

R v Debortoli

Case [2020] NSWDC 466 8 April 2020

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District Court

New South Wales

Medium Neutral Citation: R v Debortoli [2020] NSWDC 466
Hearing dates: 8 April 2020
Date of orders: 8 April 2020
Decision date: 08 April 2020
Jurisdiction: Criminal
Before: Norrish QC DCJ
Decision:
Sentenced to an aggregate term of imprisonment of 2 years 8 months; non-parole period 1 year 6 months imprisonment.

Catchwords:
CRIME – sentence – enter building with intent commit serious indictable offence larceny – attempted aggravated break and enter with intent to commit serious indictable offence larceny – people there – extensive criminal history – number of parole breaches – stealing of items of low value – mainly foodstuffs – drug use – institutionalised – social disadvantage - remorse – pleas of guilty – totality of criminality – COVID-19 considerations – health issues.

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
Callaghan v R [2006] NSWCCA 58
DPP(Cth) v De La Rosa [2010] NSWCCA 194
Harris v R [2005] NSWCCA 204
Hemsley v R [2004] NSWCCA 228
Johnson v R [2004] HCA 15; 78 ALJR 616
Markarianv R [2005] HCA 25; 228 CLR 357
Mill v R (1988) 166 CLR 59
Palu v R [2002] NSWCCA 381
Pearce v R (1998) 194 CLR 610
Ponfield v R (1999) 48 NSWLR 327
R v Engert (1995) 84 A Crim R 67
R v Huynh [2005] NSWCCA 220
R v Israil [2002] NSWCCA 255
R vXX (2009) 195 A Crim R 38
Yardleyv Betts (1979) 1 A Crim R 329

Category: Sentence
Parties: Regina (Crown)
Adrian Debortoli (offender)
Representation: Solicitors:
Ms L Robeau (DPP)
Ms S Perera (offender)

File Number(s): 2019/00278782
Publication restriction: No

Judgment

The prisoner Adrian Debortoli appears before me today for sentence in relation to four matters, with two matters to be considered on two separate Forms 1. All the offences I am concerned with were committed by the offender on 4 September 2019. The facts suggest that they were committed over a period of approximately four hours in the early morning.
The first offence in time, as it is listed amongst the separate charges on the charge certificate is an offence of on 4 September 2019 at Waterloo breaking and entering a business known as ‘Luke’s Kitchen’ in Danks Street Waterloo and stealing items of food and refreshment as well as a newspaper. These items included eggs, a six pack of beer, some bottles of wine, some almond milk and a packet of bacon. This is an offence contrary to s 112 of the Crimes Act 1900 without having to cite the subsection, carries a maximum penalty of 14 years imprisonment and has no standard non-parole period.
The next offence for sentence, sequence 6, is an offence on the same date, of entering a building, namely Taylor’s College in Bourke Street Waterloo with intent to commit the indictable offence of larceny in that building. Attached to that offence on a Form 1 is an offence of larceny, which is sequence 7, stealing…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Debortoli

Details

AGLC: R v Debortoli [2020] NSWDC 466
Case: [2020] NSWDC 466
Decision Date: 08 April 2020

CaseChat Overview and Summary

The case of R v Debortoli involved the defendant, who was prosecuted for attempting to break and enter a building with the intent to commit a serious indictable offence of larceny. The matter was heard in a relevant court in Australia. The defendant entered a building with the intention of stealing items, which included foodstuffs of low value, despite the presence of people within the building. Both the defendant's criminal history and his multiple parole breaches were significant factors in the court's consideration. Additionally, the defendant's drug use, social disadvantage, institutionalisation, and health issues, particularly in the context of COVID-19, were also taken into account. The defendant pleaded guilty to both charges.

The central legal issues revolved around the appropriate sentencing for the defendant's criminal activities, taking into account his extensive history, the nature of the offences, and mitigating factors such as his remorse and health issues. The court had to balance the totality of the defendant's criminal conduct against the mitigating circumstances, including his health and social disadvantage. Additionally, the court needed to consider COVID-19 related health issues in determining the sentence.

The court assessed the totality of the defendant's criminality, weighing his extensive criminal history and parole breaches against the mitigating factors. The court found that while the defendant's actions were serious, his remorse and health issues warranted some consideration. However, the court emphasised the need to protect the community and the seriousness of the offences. After thorough deliberation, the court sentenced the defendant to an aggregate term of imprisonment of 2 years and 8 months, with a non-parole period of 1 year and 6 months.

The court made orders that the defendant be imprisoned for a total of 2 years and 8 months, with a non-parole period of 1 year and 6 months. These orders reflect the court's balanced approach to the defendant's criminal conduct, taking into account both the aggravating and mitigating factors presented.

Orders

Orders of the court

Sentenced to an aggregate term of imprisonment of 2 years 8 months; non-parole period 1 year 6 months imprisonment.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Debortoli [2020] NSWDC 466

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 14 of 14 shown

Brown v The Queen
[2020] VSCA 60 Para 22

…There is a decision, for example, of the Victorian Court of Appeal of 23 March in a decision of Brown v R [2020] VSCA 60. There their Honours, particularly Justices Priest and Weinberg, inter alia, noted that the situation was rapidly evolving, that courts were hesitant at that point to express a general statemen…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194 Para 8

…Engert (1995) 84 A Crim R 67 , R v Israil [2002] NSWCCA 255 , Hemsley v R [2004] NSWCCA 228, and more recently, for example, DPP(Cth) v De La Rosa [2010] NSWCCA 194. A five Judge bench considering a Commonwealth sentence matter where McClelland CJ at CL, at [177]-[178], referred to the principles gleaned from previ…
Callaghan v R
[2006] NSWCCA 58

…s – health issues. Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Callaghan v R [2006] NSWCCA 58 DPP(Cth) v De La Rosa [2010] NSWCCA 194 Harris v R [2005] NSWCCA 204 Hemsley v R [2004] NSWCCA 228 Johnson v R [2004] HCA 15; 78 ALJR 616 Markarian v R [2005] HCA 25; 228 CLR 357…
R v Huynh
[2005] NSWCCA 220 Para 24

…The defence, I should hasten to say, referred me to the decision of R v Huynh [2005] NSWCCA 220, where her Honour Simpson J, in her usual erudite and succinct fashion, examined considerations in relation to the objective seriousness of an offence with a pleaded circumstance of aggravation, in that case breaking, ent…
Harris v R
[2005] NSWCCA 204

…cing Procedure) Act 1999 Cases Cited: Callaghan v R [2006] NSWCCA 58 DPP(Cth) v De La Rosa [2010] NSWCCA 194 Harris v R [2005] NSWCCA 204 Hemsley v R [2004] NSWCCA 228 Johnson v R [2004] HCA 15; 78 ALJR 616 Markarian v R [2005] HCA 25; 228 CLR 357 Mill v R (1988) 166 CLR 59 Palu v R [2002] NSWCCA 381 Pearce v R (199…
Markarian v The Queen
[2005] HCA 25 Para 23

…e way in which I am required to take into account a large number of matters in a sense discussed by the High Court in the decision of Markarian v R [2005] HCA 25; 228 CLR 357.…
R v Hemsley
[2004] NSWCCA 228 Para 8

…ense discussed by many cases of the Court of Criminal Appeal, such as R v Engert (1995) 84 A Crim R 67 , R v Israil [2002] NSWCCA 255 , Hemsley v R [2004] NSWCCA 228, and more recently, for example, DPP(Cth) v De La Rosa [2010] NSWCCA 194. A five Judge bench considering a Commonwealth sentence matter where McClellan…
Johnson v The Queen
[2004] HCA 15 Para 3

…High Court majority in Pearce v R (1998) 194 CLR 610, particularly at [45]. These principles were discussed further by the High Court in Johnson v R [2004] HCA 15; 78 ALJR 616, which also cited the decision of Mill v R (1988) 166 CLR 59 and its discussion of the concept of totality of sentencing for practical p…
R v Palu
[2002] NSWCCA 381

…228 Johnson v R [2004] HCA 15; 78 ALJR 616 Markarian v R [2005] HCA 25; 228 CLR 357 Mill v R (1988) 166 CLR 59 Palu v R [2002] NSWCCA 381 Pearce v R (1998) 194 CLR 610 Ponfield v R (1999) 48 NSWLR 327 R v Engert (1995) 84 A Crim R 67 R v Huynh [2005] NSWCCA 220 R v Israil [2002] NSWCCA 255 R v XX (2009) 195 A Crim R…
R v Israil
[2002] NSWCCA 255 Para 8

…be regarded as relevant in the sense discussed by many cases of the Court of Criminal Appeal, such as R v Engert (1995) 84 A Crim R 67 , R v Israil [2002] NSWCCA 255 , Hemsley v R [2004] NSWCCA 228, and more recently, for example, DPP(Cth) v De La Rosa [2010] NSWCCA 194. A five Judge bench considering a Commonwealth…
R v Ponfield
[1999] NSWCCA 435 Para 25

…emises in various ways for the purposes of stealing or with the intention of stealing another relevant judgment of course is the decision of Ponfield (1999) 48 NSWLR 327 to which reference is made in the written submissions of counsel for the prisoner. That guideline judgment particularly in the judgment of Grove J, s…
Pearce v The Queen
[1998] HCA 57 Para 3

…reflect the totality of the criminality. In that regard I note what was said about totality and criminality by the High Court majority in Pearce v R (1998) 194 CLR 610, particularly at [45]. These principles were discussed further by the High Court in Johnson v R [2004] HCA 15; 78 ALJR 616, which also cited the deci…
Mill v The Queen
[1988] HCA 70 Para 3

…[45]. These principles were discussed further by the High Court in Johnson v R [2004] HCA 15; 78 ALJR 616, which also cited the decision of Mill v R (1988) 166 CLR 59 and its discussion of the concept of totality of sentencing for practical purposes, particularly picking up on the observations of the famous English…
Yardley v Betts
(1979) 22 SASR 108 Para 16

…sistent drug use, professional assistance because at the end of the day, to cite observations made by Wells CJ in South Australia, in the case of Yardley v Betts (1979) 1 A Crim R 329, promotion of rehabilitation is not just for the benefit of the offender, it is for the benefit of a community.…

Legislation cited in this decision · 2

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 10)
Crimes Act 1900 (ACT)
1 mention (from Para 2)

Medium Neutral Citation:	R v Debortoli [2020] NSWDC 466
Hearing dates:	8 April 2020
Date of orders:	8 April 2020
Decision date:	08 April 2020
Jurisdiction:	Criminal
Before:	Norrish QC DCJ
Decision:	Sentenced to an aggregate term of imprisonment of 2 years 8 months; non-parole period 1 year 6 months imprisonment.
Catchwords:	CRIME – sentence – enter building with intent commit serious indictable offence larceny – attempted aggravated break and enter with intent to commit serious indictable offence larceny – people there – extensive criminal history – number of parole breaches – stealing of items of low value – mainly foodstuffs – drug use – institutionalised – social disadvantage - remorse – pleas of guilty – totality of criminality – COVID-19 considerations – health issues.
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Callaghan v R [2006] NSWCCA 58 DPP(Cth) v De La Rosa [2010] NSWCCA 194 Harris v R [2005] NSWCCA 204 Hemsley v R [2004] NSWCCA 228 Johnson v R [2004] HCA 15; 78 ALJR 616 Markarianv R [2005] HCA 25; 228 CLR 357 Mill v R (1988) 166 CLR 59 Palu v R [2002] NSWCCA 381 Pearce v R (1998) 194 CLR 610 Ponfield v R (1999) 48 NSWLR 327 R v Engert (1995) 84 A Crim R 67 R v Huynh [2005] NSWCCA 220 R v Israil [2002] NSWCCA 255 R vXX (2009) 195 A Crim R 38 Yardleyv Betts (1979) 1 A Crim R 329
Category:	Sentence
Parties:	Regina (Crown) Adrian Debortoli (offender)
Representation:	Solicitors: Ms L Robeau (DPP) Ms S Perera (offender)
File Number(s):	2019/00278782
Publication restriction:	No