R v Little

[2025] NSWDC 138

District Court

New South Wales

Medium Neutral Citation:

R v LITTLE [2025] NSWDC 138

Hearing dates:

26 March 2025

Date of orders:

24 April 2025

Decision date:

24 April 2025

Jurisdiction:

Criminal

Before:

Lerve DCJ

Decision:

Sentenced to an aggregate term of imprisonment – see paragraphs [74]-[79]

Catchwords:

CRIME – property offences – aggravated break and enter commit serious indictable offence - aggravated break and enter with intent to commit serious indictable offence - enter land with intent to commit serious indictable offence - enter building with intent to commit serious indictable offence

SENTENCE – multiple offences over a number of properties – juvenile co-offenders – past brain injury – no overt evidence of an intellectual disability, but deficits in executive functioning – principles in Bugmy enlivened – parity has little work to do in this case

Legislation Cited:

Crimes Act, 1900

Crimes (Sentencing Procedure) Act, 1999

Criminal Procedure Act, 1986

Cases Cited:

Bugmy v The Queen [2013] HCA 37

DPP (Cth) v De La Rosa (2010) 79 NSWLR 1

Hunter v R [2011] NSWCCA 141

R v Harris [2007] NSWCCA 130

R v Merrin [2007] NSWCCA 255

Category:

Sentence

Parties:

Rex
Tyson LITTLE

Representation:

Counsel:
Ms K Borchert for the Crown
Mr T Jackson for the Offender

Solicitors:
Office of the Director of Public Prosecutions
Tankards Law,

File Number(s):

2024/68203

Publication restriction:

No

remarks on sentence

1. The offender appeared at the Wagga Wagga Local Court on 11 December 2024 and pleaded guilty to the following:

H80404743

Sequences 1, 4, and 5 – Aggravated Break Enter and Commit Serious Indictable Offence (Larceny) contrary to s 112(2) of the Crimes Act, 1900; and

Sequence 3 – Enter Land with Intent to Commit an Indictable Offence namely larceny contrary to s 114(1)(d) of the Crimes Act; and

Sequences 6,15 and 16 – Aggravated Break and Enter with Intent to Commit an Indictable Offence, contrary to s 113(2) of the Crimes Act; and

Sequences 21 and 22 – Enter Building in Company with Intent to Steal, contrary to s 111(2) of the Crimes Act.

2. The offender adhered to his pleas of guilty at the Wagga Wagga District Court on 26 March 2025 and accordingly he is entitled to the full 25% discount for the utilitarian value of the pleas of guilty

3. The maximum penalty for each of the offences contrary to s 112(2) of the Crimes Act is 20 years imprisonment. Parliament has specified a standard non-parole period of 5 years in respect of those offences. The maximum penalty for the offence contrary to s 114(1)(d) of the Crimes Act is 7 years imprisonment. The maximum penalty for each of the offences contrary to s 113(2) of the Crimes Act is 14 years imprisonment. The maximum penalty for each of the offences contrary to s 111(2) of the Crimes Act is 14 years imprisonment.

4. In addition, at the sentence hearing the offender pleaded guilty to two charges of Be Carried in Conveyance Taken Without the Consent of the Owner which attaches to a Certificate pursuant to s 166 of the Criminal Procedure Act, 1986. As I observed at the sentence hearing the appropriate disposition of those matters is an order pursuant to s 10A of the Sentencing Act, recording a conviction and imposing no further penalty.

5. Given the number of charges I will deal with the seriousness of the matter after reciting the facts for that matter.

Facts

6. The facts are before the court by way of a statement of agreed facts. The offender was born on 26 June 1996 and accordingly is now 28 years of age. There were two co-offenders AC and BM, both of whom were juveniles at the time of the offending.

7. The facts recite that on 12 December 2023 the offender and two co-offenders went on a “crime spree” in the early hours of the morning. They travelled within a radius of approximately 21 km which appears to have started at Gobbagombalin at 3:35 am and finished at Kapooka at 6:22 am.

8. Going initially to sequence 1, on 12 December at approximately 3:45 am, the offender and co-offenders jumped the fence to enter the backyard of 1 Kentucky Place, Gobbagombalin. At about 10 pm on Monday, 11 December 2023 the owner of the property, Kevin Usares, who lives there with his wife and children secured the premises before going to bed. His vehicle was parked on the median strip outside his house and the keys to the car were inside his wife’s handbag which was in the living room. A spare key to the car is kept in the kitchen.

9. Mr Usares was asleep inside when he woke up hearing his dog barking at about 3:45 am. After checking on his family he went outside and realised his car had been stolen. CCTV footage, which is detailed at paragraph 6 of the facts, sets out that 42 seconds into the footage the offender is depicted jumping the fence and entering the yard area of the premises at 2:36:43 am. A further two minutes into the footage depicts the offender and two co-offenders inside the yard of the premises at 2:49:51 am shining torches into windows, looking for a way to enter the house.

10. At 2 minutes and 46 seconds into the same footage, the co-accused persons can be seen removing a fly screen from the window and obtaining a bag from inside the premises. The offender and two young persons jump the fence again and leave the premises. The facts indicate that the keys to a Subaru vehicle were found in the bag. The vehicle was driven from the premises.

11. Relevant to the assessment of the seriousness of all of the offences contrary to s 112(2) of the Crimes Act is the decision of Hunter v R [2011] NSWCCA 141 at [52] per Adams J. The offending occurred under the cover of darkness at residential premises, which were occupied. Although I am informed that the vehicle was stolen, the facts do not indicate the value of the property. The circumstance of aggravation relied upon is being in company which is generally regarded as the least serious factor within s 105A of the Crimes Act. The offender was very much part of a joint criminal enterprise even though he may not himself gone into the premises. The matter is below mid-range but neither to a slight nor substantial extent.

12. The facts then go to one of the matters attaching to the s 166 Certificate. The offender was carried in the vehicle that had been stolen. Dashcam footage depicts the vehicle travelling at speeds up to 160 km/h in a 50 km/h zone.

13. Sequence 3 is a charge of Enter Building With Intent to Commit an Indictable Offence. At about 4:20 am on 12 December 2023 the offender and the two co-offenders drove into the premises at 2 Birch Street, Lake Albert. They appeared to look around the premises before driving away. Nothing is taken. What I have just repeated is verbatim from the agreed facts. No further detail is given. This is an unremarkable example of this type of offence. It is well below mid-range.

14. The facts then go to Sequence 4 and the other matter attaching to the s 166 Certificate. On the same day at approximately 4:22 am the offender and the two young co-offenders drove to the premises at 1 Sycamore Road, Lake Albert where on arriving they alighted from the vehicle.

15. Mr Tom Gates and his wife, who occupied the premises, locked the house before going to bed. The next day Mr Gates noticed that the rear door to the house had been forced and then realised that his car keys and wallet were missing from the kitchen where he had left them the night before. This offender and the two young co offenders entered the property by forcing open the rear door to the house and found the wallet and keys to a Mazda BT 50 vehicle. The vehicle was driven away from the premises without the owner’s consent. A Yamaha motorcycle worth approximately $1500 was also stolen.

16. One of the trio of offenders was driving the Subaru vehicle taken earlier in the night and one of the others was driving the Mazda BT 50. Dashcam footage from the Subaru depicts the offender and two young co-offenders driving around in the Mazda BT 50 during the early hours of the morning.

17. Again, the court is not informed of the value of the Mazda motor vehicle. The offence occurred in the early hours of the morning at residential premises with the owners being home. The facts indicate some minor damage was done to the rear door of the premises. The aggravation relied upon is knowing persons were within the premises. The matter is below mid-range but not significantly so noting the property that was taken and that there was some minor damage to the door.

18. Sequence 5 is another count of Aggravated Break Enter and Steal. The aggravation relied upon is knowing persons to be present within the premises. At approximately 4:47 am on the same day the Mazda BT 50 vehicle was driven down Landsdowne Street, Lake Albert and left on the side of the road.

19. The offender and the two young co-offenders went to the premises at 2 Dalkeith Place, Lake Albert which can also be accessed from Lansdowne Street. Joanna Strader, the owner of the premises, went to sleep at approximately 11 pm. Prior to doing so she had closed the side gate to the premises but it remained unlocked. She also left the keys to her Toyota Corolla motor vehicle (registration AUR16M) on the kitchen table and closed the rear door to the premises which also remained unlocked.

20. The facts then go on to say “Dashcam footage depicts one of the trio driving a silver Toyota Corolla, registration AUR16M, throughout the evening of 12 December 2023”. The irresistible inference in the circumstances as part of a joint criminal enterprise which included this offender the keys to the vehicle were obtained and the vehicle driven away. The premises were accessed by the closed but unlocked door; the keys and subsequently the vehicle was taken.

21. Again, the offending occurred in the early hours of the morning at residential premises which were occupied. Yet again the court is not informed of the value of the vehicle that was taken. No other property other than the vehicle was taken. The matter is below mid-range, but neither to a slight or substantial extent.

22. Sequence 6 is a charge of Aggravated Break Enter With Intent to Steal contrary to s 113(2) of the Crimes Act. At about 4.47 am the offender and young co-offenders were driving the Toyota and Subaru, with this offender being a passenger. The vehicle was driven to Mimosa Drive, Mount Austin where the offender and the young co-offenders left the vehicle. They went to 5 Mimosa Crescent where they entered the property through a closed but unlocked door located at the rear of the house. CCTV footage depicts the offenders entering the premises through this door and then turning suddenly and running away. The occupant of the house called out “hey” when she heard the noise.

23. The occupant became aware of the presence of the offender and the co-offenders but was not confronted by them. The property was residential premises and the offending occurred quite early in the morning. No damage was occasioned to the property and the break-in was simply opening a closed but unlocked door. The matter is below mid-range.

24. Sequence 15 is a charge of Aggravated Break and Enter a Dwelling with Intent to Steal. At 6.05 am the offender and the two juveniles drove to 15 Benedict Street, San Isidore and drove through the property towards a shed located at the southern side. The door to the shed was a sliding door that was closed but unlocked. The offender and the two young co-offenders opened the door in order to see if they could find anything to steal. Nothing could be found so they left the premises a short time later.

25. This is an unremarkable example of this type of offence. San Isidore is a small settlement some few kilometres out of the city of Wagga Wagga. The offence was committed at about 6 am. The building entered was an unoccupied shed. In the circumstances the matter is well below mid-range and indeed is towards the lower end of the range.

26. Sequence 16 is another charge of Aggravated Break and Enter with Intent to Steal. At 6.07 am the offender and the two young co-offenders made their way to 11 Benedict Street, San Isidore and drove towards a shed located at the southern side of the property. Dashcam footage obtained shows the roller door to the shed was initially closed but the offender and the two young co-offenders forced the door open before entering the shed. The three offenders left the premises a short time later.

27. This matter is slightly more serious than the matter to which sequence 15 relates, in that the roller door to the shed was forced. However, the building entered was an unoccupied shed. The irresistible inference is that the offenders entered the shed in order to see if they could find something to steal. The matter is well below mid-range.

28. Sequence 21 is a charge of Enter Dwelling in Company With Intent to Steal, contrary to s 111(2) of the Crimes Act. The offender and the two young co-offenders went to 26 Benedict Street, San Isidore and entered a shed on the property that had parked within it a large commercial bus. CCTV footage depicts the offender and the two co-offenders walking around searching the shed before returning to the vehicle and driving away from the premises.

29. Clearly the three offenders were at the shed looking to find anything that could be conveniently stolen. The premises were an unoccupied shed. No damage was done. The matter is very much towards the lower end of the scale of seriousness.

30. Sequence 22 is a further charge of Enter Dwelling in Company with Intent to Steal, contrary to s 111(2) of the Crimes Act. At 6:12 am the offender and the co-offender’s made their way to 22 Eugene Street, San Isidore. Dashcam footage depicts the three offenders getting out of the car and walking into the shed and looking around. They drove away a short time later. Again, the irresistible inference is that the three offenders were looking for property to steal. Again, the shed is unoccupied and no damage was done. Again, this matter is very much towards the lower end of the scale of seriousness.

31. The offender and the two young co-offenders drove to an address in Glenfield Park where they left the cars parked and left the area.

32. On Wednesday, 21 February 2024 police attended an address in Ashmont, a suburb of Wagga Wagga, and found the offender hiding in a rear bedroom. He was arrested and cautioned and taken to the Wagga Wagga Police Station where he was entered into custody. As was his right, he declined to participate in an electronically recorded interview.

33. Paragraph 3 of the facts depicts a map of the local area, indicating the area over which the offending occurred. That map is reproduced hereunder:

Criminal History

35. The offender was born on 22 June 1996 and accordingly was 27 years of age at the time of offending and close to 29 years of age at the time of sentence. The offender has a substantial history in the Children’s Court, which I ignore. However, on 7 June 2019 the offender was sentenced at the District Court at Wagga Wagga to an aggregate sentence of 7 years with a non-parole period of 4 years and 4 months. The sentence was following a trial and related to a sexual assault and other serious matters of domestic violence. The offender was on parole in respect of that sentence at the time of the commission of the offending for which he now appears for sentence.

36. The offender has a record that does not entitle him to any particular leniency. Further, the factor of statutory aggravation of committing further offences while subject to conditional liberty provided for by s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999 is made out.

Subjective Case

37. No oral evidence was called from or on behalf of the offender. A psychological report prepared by Dr Travis Wearne of Legal Psychology Group Australia, which was prepared for the 2019 matters was tendered on behalf of the offender.

38. At the age of 13 the offender sustained a traumatic brain injury when he fell from a school roof on 28 March 2009. He was intubated and transferred to the Wagga Wagga Base Hospital and upon admission had a Glasgow Coma Scale (a measure of consciousness) of 7/15. The CT brain scan performed at the time showed parenchymal haemorrhages within the left parietal lobe, bilateral haemorrhagic contusions of the temporal lobes, a left extra axial haematoma and fractures of the right parietal and sphenoid bones. The offender was discharged from hospital on 17 April 2009 with a referral to a rehabilitation service.

39. Under a heading “summary of previous assessments” the author of the report notes that the offender’s cognitive functioning was assessed on 24 September 2009 and 9 March 2010. The offender’s general intellectual functioning was in the “borderline” range and he had difficulties with his attention and working memory, speed of information processing learning and memory, and executive functions related to idea generation, decision-making and planning and organisation. A neuropsychologist assessed the offender in 2013 and her findings were largely consistent with those of the previous assessments.

40. Despite this, I note that Dr Wearne at paragraph 16 (page 7) of his report concluded that “there was no overt evidence of an intellectual disability based on my interactions with him”. Further, at paragraph 19 of the report the author notes that the offender’s overall level of intellectual functioning fell within the “borderline” range with borderline verbal knowledge, verbal abstract reasoning and non-verbal/visual intellectual skills.

41. Later in the report at paragraph 21 the author notes that the offender performed in the “low average” range to “average” range on most tasks involving his higher order thinking abilities including planning and organisation.

42. Then at paragraph 23 the author opines “the results from the current assessment suggest that Mr Little is performing within normal limits in most areas of his intellectual and cognitive functioning furthermore compared to his previous assessments in 2010 and 2013 Mr Little has made significant improvements in his cognitive functioning following the brain injury, particularly in reference to his learning and memory and executive functioning… Overall it can be said that Mr Little has made an excellent cognitive recovery from a very serious traumatic brain injury. The findings of Mr Little’s assessment, including his intellectual functioning and adaptive functioning, also demonstrate that he does not have an intellectual disability as previously reported.”

43. Mr Jackson, Counsel for the offender, put in oral submissions at the sentence hearing that the deficits in executive functioning lead to poor decision-making. I have no difficulty accepting that submission. It was put on behalf of the offender and I agree that the planning in the matters presently under consideration were not complex.

44. While the offender may be labouring under some deficits in executive functioning, noting the ultimate opinion of Dr Wearne that the offender does not have an intellectual disability, the principles set out by McClellan CJ at CL in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177]-[178] are not enlivened in this case. General deterrence has work to do in this sentencing exercise particularly noting the multiplicity of offending and the judgments of the Court of Criminal Appeal in R v Harris [2007] NSWCCA 130 and R v Merrin [2007] NSWCCA 255 both of which related to examples of multiple offending break enter and steal type matters. Further, given the history of the offender, specific deterrence must also be factored into the sentence ultimately imposed in this matter.

45. Returning to the report of Dr Wearne the family background of the offender is set out at paragraphs 7 and following. The offender was born in Orange and grew up in Griffith New South Wales. He was raised by his mother and is the eldest of five children. His father was from Papua New Guinea. His father was convicted and sentenced in respect of the homicide (manslaughter) of a young infant and was subsequently deported back to Papua New Guinea.

37. The offender gave an account to the author of the report of being close with his grandparents but he was “flogged by his uncles to make him tough as he was the eldest child in the family”. A family friend repeatedly attempted to sexually assault him when he was in year two and year three at school, however, he was able to rebuff the advances of this older boy.

38. The offender’s family moved to Wagga Wagga when he was aged 11. The offender was also bullied, bashed and harassed by the family of the infant in respect of whom the offender’s father was imprisoned. At the age of 16 he moved back to Griffith to live independently but he had some assistance from his mother’s family.

39. Clearly given the history of the offender and in particular the exposure to violence, which I have just recounted I am firmly of the opinion that the principles enunciated by the High Court of Australia in Bugmy v The Queen [2013] HCA 37 are enlivened to a meaningful extent, reducing the moral culpability of the offender to that extent.

40. The offender had issues with his formal education, including admitting that he was disruptive and uncontrollable and placed in special classes. He also described a history of truancy detentions and suspensions from school at a young age. He enjoyed secondary school more than primary school. Following the brain injury he was transferred to The Bidgee School, a school that caters for students impacted by trauma, abuse, neglect, violence and mental health conditions. However, his behavioural issues persisted and he was asked to leave during year 10. He completed years 11 and 12 through TAFE while in juvenile detention. He has done a shearing course and has worked in that capacity. He expressed a desire to return to shearing upon his release.

41. Dr Wearne also recounts that the offender said that he tended to gravitate towards negative peer influences in his life throughout his childhood. At 16 years of age he moved to Griffith in an attempt to separate himself from negative influences but he was unsuccessful. It would seem that although the offender’s co-offenders in the present offending were younger, they are, or at least were negative influences. Both juvenile co-offenders have unenviable criminal histories. It could not be found on the material before me that this offender, despite being much older than the juvenile co offenders was the leader or instigator of the criminal activity that took place on 12 and 13 December 2023.

42. According to paragraph 13 of Dr Wearne’s report, the offender commenced using alcohol at 14 years of age and use of cannabis since he was 11. At the time of the preparation of that report, now some years ago, the offender’s alcohol use was problematic.

43. Further, the offender was diagnosed with Attention-deficit hyperactivity disorder (ADHD) at the age of 6. However, Dr Wearne found (paragraph 16) that there was no overt evidence of an intellectual disability. However, at paragraph 19 Dr Wearne opines that the offender’s overall level of intellectual functioning fell in the borderline range. A little later (paragraph 21) the report sets out that the offender performed in low average to average ranges on most tasks involving high-order thinking abilities including planning and organisation verbal abstract reasoning.

44. Dr Wearne says at paragraph 23 that the results from the current (i.e. 2019) assessment suggests that the offender was performing within normal limits in most areas of his intellectual and cognitive functioning. A little later the report sets out that while the offender continues to have difficulties with his attention and concentration, these are likely consistent with pre-injury functioning. Dr Wearne clearly states that the offender does not have an intellectual disability as previously reported.

45. At paragraph 24 Dr Wearne set out:

“…He will require further assessment over time to determine the factors underpinning his behaviour and identify his precise treatment and management needs. Notwithstanding this uncertainty there is little doubt that he is on his way to developing an antisocial personality disorder and progressing along a life-long criminal trajectory…The interventions and management he receives now will be critically important in shaping his social trajectory into the future.

55. The report also sets out that the 2019 offending appeared to have been in the context of substance use, particularly alcohol and the offender will require treatment for the management of his substance use in the first instance. Further, management of psychosocial factors such as housing, peers, vocational training and education will be an important first step in rehabilitation. It was recommended that the offender be professionally supervised by Community Corrections.

56. I note that there is no updated psychological material. That is not a criticism of those who appear for the offender, but an observation. From the present offending it appears that the offender still faces many of the issues that he did in 2019. Anti-social peers remain a problem. There is further reason to assume that Dr Wearne’s prediction of that the offender “is progressing along a life-long criminal trajectory” was correct.

57. Clearly enough, upon his eventual release the offender will require intensive and extensive supervision by Community Corrections if there is any chance of the offender leading a law-abiding lifestyle. As Mr Jackson, counsel for the offender, correctly submitted at the sentence hearing there will need to be a multi-disciplinary approach taken by the various agencies with the offender on his release.

58. Despite the breach of parole and the history of the offender, the need for this period of intensive and extensive supervision justifies a finding of special circumstances. It seems to me also that there may well be an issue of the offender possibly being institutionalised. Further, it also occurs to me that the offender will require significant assistance in reintegrating into the community. The offender must understand however, that any breach of parole upon his release after the non-parole period on this occasion will result in any court being far less sympathetic to any submission that special circumstances be found.

59. Although there is no updated psychological report there is available a reasonably comprehensive Sentence Assessment Report (SAR) of 21 March 2025. The offender’s mother is prepared to support him upon his release and assist him in receiving appropriate treatment and counselling for substance abuse issues. He was not working at the time of the offending.

60. Under the heading “Attitudes” the author of the SAR sets out that although the offender acknowledges his offending behaviour, his ability to fully connect his drug use to his offences appears limited, often using substance use as a justification rather than taking full accountability.

61. On a positive note, the offender has been placed on the “Bupe” (Bivudal) programme while in custody.

62. The offender told the author of the SAR that he has limited recollection of the offending, claiming that his illicit substance use affected his behaviour. He shows some awareness into the impact of his offending and was able to acknowledge the negative impact of his actions.

63. The author of the SAR assesses the offender as a high risk of re-offending. Given this opinion, the criminal history and the breach of conditional liberty I am quite unable to make any finding that the offender is unlikely to re-offend. Essentially for those same reasons I am unable to make any positive finding that there are good prospects of rehabilitation. Despite what is in the SAR I am not prepared to make a finding that the offender is remorseful.

General Remarks

64. Parity is something of a consideration but has little real work to do in this sentencing exercise. The two co-offenders are juveniles and were dealt with in the Children’s Court where different principles apply and where rehabilitation achieves significance over general and specific deterrence.

65. AC was sentenced to a Control Order of 19 months with a non-parole period of 9 months. BM was sentenced to a Control Order of 16 months with a non-parole period of 8 months. The Crown tender bundle contains the criminal histories of the juvenile co offenders in the form of what is known as a “Bail Report”. Those documents are notoriously difficult to negotiate and often entries are duplicated. Even so, both of the juvenile co offenders have unenviable records.

66. However, as I have already observed, the present offending was very much a joint criminal enterprise. Usually this offender was the passenger in the vehicles that had been taken. There is no material before me which would enable me to find that this offender was the prime mover or instigator of the offending.

67. I will need to give proper regard and effect to sections 3A and 5 of the Crimes (Sentencing Procedure) Act. Section 3A sets out the purposes of punishment, namely:

1. to ensure that the offender is adequately punished for the offence,

2. to prevent crime by deterring the offender and other persons from committing similar offences,

3. to protect the community from the offender,

4. to promote the rehabilitation of the offender,

5. to make the offender accountable for his or her actions,

6. to denounce the conduct of the offender, and

7. to recognise the harm done to the victim of the crime and the community.

68. Section 5 of the Crimes (Sentencing Procedure) Act provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives no other sentence is appropriate. Given the maximum penalties provided, the nature of the offending, the need for general deterrence and the multiplicity of offending, there must be a sentence of full time imprisonment imposed in this matter. Counsel for the offender did not argue to the contrary.

69. There is an issue about the commencement date of the sentence in this matter. The Crown submits that the sentence imposed in this matter should date from 10 January 2025. On behalf of the offender it is argued that the sentence should commence before that date noting that the offender has been in custody since his arrest on 21 February 2024.

70. Parole was revoked from 22 February 2024 and the total sentence expired on 10 January 2025. However, the offender was taken into custody on 21 February 2024. In the interest of totality there should be some backdating from 10 January 2025 and therefore only some partial accumulation with the balance of parole. I propose to commence the sentence in this matter from 21 August 2024, to take that 1 day in which the offender would have been in custody into account.

71. Clearly this is an appropriate matter for an aggregate sentence. I will set out hereunder in tabular form the sentences that would have been imposed had separate sentences been imposed. If separate sentences were imposed there would need to be some modest degree of partial accumulation to take into account the different offending and the different premises targeted by this offender and his juvenile co-offenders. In this regard see for e.g. R v Merrin [2007] NSWCCA 255.

72. The sentences that would have been imposed had separate sentences been imposed are

H80404743

Seq	offence	Description of offending	Maximum penalty	Indicative sentence
1	Aggravated Break Enter and Steal – s 112(2) Crimes Act	12 December 2023 Break in at 1 Kentucky Place Gobbagombalin	20 years, SNPP 5 years	Taking into account Form 1 matter NPP 16 months, balance of term (b.o.t.) 8.75 months, total sentence 24.75 months (starting point 33 months)
3	Enter Building With Intent to Commit Indictable offence – s 114(1)(d) Crimes Act	12 December 2023 2 Birch Street, Lake Albert	7 years	Total sentence 9 months (s/p 12 months)
4	Aggravated Break Enter and Steal – s 112(2) Crimes Act	12 December 2023 1 Sycamore Road, Lake Albert	20 years, SNPP 5 years	NPP 19 months b.o.t. 10.25 months total sentence 29.25 months (s/p 3 years 3 months)
5	Aggravated Break Enter and Steal – s 112(2) Crimes Act	12 December 2023 2 Dalkeith Avenue, Lake Alert	As above	NPP 18 months b.o.t 9 months total sentence 2 years 3 months (s/p 3 years)
6	Aggravated Break Enter with Intent to Steal – s 113(2) Crimes Act	12 December 2023 5 Mimosa Drive, Mount Austin	14 years	Total sentence 22.5 months (s/p 2 years 6 months)
15	Aggravated Break and Enter with intent to Steal – s 113(2) Crimes Act	13 December 2023 Large farm shed at 15 Benedict Street, San Isidore	14 years	Total sentence 15 months (s/p 1 year 8 months)
16	Aggravated Break and Enter with Intent to Steal – s 113(2) Crimes Act	13 December 2023 Large farm shed at 11 Bendict Street, San Isidore	14 years	Total sentence 13.5 months (s/p 18 months)
21	Enter Dwelling in Company With Intent to Steal – s 111(2) Crimes Act	13 December 2023 26 Benedict Street San Isidore	14 years	As for sequence 16
22	Enter Dwelling in Company with Intent to Steal – s 111(2) Crimes Act	13 December 2023 22 Eugene Street San Isidore	14 years	As above

Orders

73. In respect of the matters to which the offender has pleaded guilty he is convicted.

74. In respect of the two charges of Be Carried in Stolen Conveyance attaching to the Certificate pursuant to s 166 of the Criminal Procedure Act the offender is convicted and no further penalty is imposed.

75. The offender is sentenced to an aggregate sentence of 5 years with a non-parole period of 3 years.

76. The non-parole period will date from 21 August 2024 and will expire on 20 August 2027.

77. The balance of term on parole of 2 years will date from 21 August 2027 and will expire on 20 August 2029.

78. The offender will be eligible for release to parole at the expiration of the non-parole period and I recommend that release.

79. The sentence indicates a finding of special circumstances, the reasons for which have been given earlier in these reasons but also include the issue of partial accumulation on the balance of parole served by the offender. The ratio between the total sentence and non-parole period is 60%, which I accept is lower than might ordinarily be appropriate. However, I have earlier set out the reasons for the finding of special circumstances and there is also the issue of partial accumulation on the balance of parole served by the offender.

80. The total effective sentence being served by the offender dates from 21 February 2024 (the date which the offender was initially taken into custody on his arrest) and will expire on 20 August 2029, which is 5 years 6 months. The actual time in custody, presuming the offender is released at the expiration of the non-parole period I have specified, dates from 21 February 2024 and expires on 20 August 2027, which is 3 years 6 months. The ratio between the total effective sentence and the total period in actual custody is approximately 64%.

81. The matter on Form 1, attaching to H80404743-001, is taken into account when sentencing that sequence.

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Decision last updated: 02 May 2025