R v McCutchen

[2022] NSWDC 214

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v McCutchen [2022] NSWDC 214

Hearing dates:

13 May 2022

Date of orders:

17 June 2022

Decision date:

17 June 2022

Jurisdiction:

Criminal

Before:

Mahony SC DCJ

Decision:

Full-time custodial sentence. For orders see [81].

Catchwords:

Break and enter and commit serious indictable offence.

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Crimes Act 1900

Cases Cited:

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Care v R [2022] NSWCCA 101

Haak v R [2022] NSWCCA 28

Hoskins v R [2021] NSWCCA 169

Jackson v R [2010] NSWCCA 162

Lloyd v R [2022] NSWCCA 18

Veen v R (No. 2) (1998) 164 CLR 465; [1998] HCA 14

Category:

Sentence

Parties:

Director of Public Prosecutions (Crown)
Mark McCutchen (Offender)

Representation:

Counsel:
C. Dobraszczyk (Crown)
D. Stewart (Offender)

File Number(s):

2019/64152

Publication restriction:

Nil.

remarks on sentence

1. The offender is to be sentenced in respect of one count of aggravated break and enter and commit serious indictable offence pursuant to s 112(2) of the Crimes Act. The offender entered a plea of guilty to the offence on 18 January 2022 and at the sentence hearing on 13 May 2022 he adhered to his plea of guilty.

2. The maximum penalty prescribed for the offence is 20 years imprisonment. There is a standard non-parole period prescribed of 5 years imprisonment.

3. The offender was born on 2 August 1979 and is now 42 years of age. He has had a complex criminal history and has spent a large amount of his life in custody both as a juvenile and as an adult. That history is referred to below, however, it is agreed between the parties that following his arrest on the index offence on 17 October 2018 by way of a future Court Attendance Notice, since 6 March 2019 he has spent 228 days in custody referable to the index offence, as a maximum.

4. The offence, which occurred on 8 October 2018, was committed whilst the offender was on parole, however that parole was revoked on 4 November 2018 in respect of other matters. The offence was committed in company of a co-offender, Daniel Neal, who also pleaded guilty to the same offence.

The sentence hearing

5. The sentence hearing took place on 13 May 2022. Exhibit A was the Crown Sentence Summary, which included an Agreed Statement of Facts which may be summarised as follows. At 3:04am on 8 October 2018, the co-offender approached the front of a retail store known as the Blue Mountains Running Co, and looked inside for a few seconds before walking away. At about 3:42am, the offender and co-offender arrived in a stolen Skoda motor vehicle registration number NBP-48K. This is the subject of an offence on a s 166 certificate, namely, be carried in conveyance taken without consent of owner pursuant to s 154A(1)(b) of the Crimes Act 1900.

6. The offenders got out of the vehicle, and the co-offender forced the front door of the store open with a small crowbar. The offenders entered the store and set off the store alarm.

7. The offenders took clothing, shoes, and the store’s cash register containing $600 before leaving in the stolen vehicle. The entire incident was captured on the store’s CCTV technology, and part of that footage was viewed on the sentence hearing. The disk became Exhibit D.

8. Later that morning, the Skoda motor vehicle was located by police at Glenbrook. In it were several coat hangers from the store, together with clothing packaging and a protein bar. At approximately 9am the same morning, employees of Penrith City Council working at Cambridge Park located a cash register in parkland, which contained store tags, gift cards and receipts, together with clothing worn during the break and enter. The items were handed in to St Marys Police Station. DNA profiles recovered from several items of clothing matched both offenders.

9. On 11 October 2018, a search warrant was executed at premises at Penrith where police located a black and red backpack containing a large amount of specialist running apparel stolen from the store. The value of the recovered stolen goods was $2,689.69. The keys to the stolen motor vehicle were also located inside the house. A further search of the premises on 15 October 2018 located other items of clothing and shoes of different sizes.

10. On 17 October 2018, a search warrant executed at premises at Werrington revealed an item of clothing and eight black wooden coat hangers. DNA taken from the item of clothing recovered the same profile as the offender. Also located was a Samsung mobile phone which was examined. The final message on the phone read “do you like any of this stuff? It’s vigilante and North face”. The message was sent between 6.37am and 6.38am on 8 October 2018. The offender was arrested at those premises and participated in an ERISP interview.

11. On 5 November 2018, a search warrant was executed at premises at Cranebrook. There, police seized shoes similar to those worn by the offender and also located a handwritten envelope and letter addressed to the co-offender from the offender. Also located was a photograph taken from the CCTV footage of the offence at the store.

12. Exhibit A included the offender’s criminal antecedents. They commenced in the Children’s Court from the age of 14. His first offence as an adult occurred when he was aged approximately 18 years and five months, for which he was sentenced to concurrent sentences of six months imprisonment on charges of assault occasioning actual bodily harm, common assault and possession of prohibited drugs. Thereafter, his criminal history could only be described as lamentable. In the same year, 1998, he was sentenced to fixed terms of six months in respect of possess implements to enter/drive conveyance and two counts of drive conveyance taken without consent of its owner.

13. In 1999, the offender was sentenced to concurrent terms of six months imprisonment for offences of possess implements to enter/drive conveyance and steal motor car.

14. In 2000, the offender was sentenced to a term of imprisonment of two years and six months with a non-parole period of 18 months on a charge of break and enter and steal. In 2000, he was also convicted of numerous traffic offences for which he was fined, and also had prison sentences imposed for offences of larceny (2), drive conveyance without consent of owner (2), drive vehicle recklessly/furiously or speed/manner dangerous and drive whilst under the influence of alcohol or other drugs. In 2001, the offender had a sentence of imprisonment of 14 months suspended, pursuant to s 12 for an offence of break and enter building. However, when he breached that bond, he was sentenced to six months imprisonment.

15. In 2002, the offender was imprisoned for six months on a charge of drive whilst disqualified and later that year had concurrent terms of imprisonment of eight months with a non-parole period of four months imposed for offences of take and drive conveyance without consent of owner and break/enter and steal from building. On a further charge of goods in or on premises reasonably suspected of being stolen, he was imprisoned for four months.

16. In 2003, the offender was sentenced to concurrent terms of imprisonment of 24 months with a non-parole period of 16 months for offences of drive conveyance taken without consent of owner and break/enter and steal from building. On the same day, he was sentenced to a term of imprisonment of 12 months to be served concurrently for driving whilst disqualified and to a fixed term of three months imprisonment for an offence of larceny.

17. In 2004, the offender was sentenced to 20 months imprisonment with a non-parole period of 15 months for a further offence of drive whilst disqualified. That sentence was reduced on appeal to 12 months with a non-parole period of six months.

18. In 2005, the offender was placed on a bond pursuant to s 9 to be of good behaviour for 12 months on a charge of resist special constable in the execution of his duty. Later that year, he was sentenced to 12 months imprisonment with a non-parole period of nine months on a further charge of drive whilst disqualified.

19. In 2006, the offender was sentenced to a term of imprisonment of three months for an offence of dispose property – theft. Later that year, he was imprisoned for 12 months with a non-parole period of eight months for break/enter and steal. In the same year, he was fined on charges of possess prohibited drug and custody of knife in public place.

20. In 2007, the offender’s criminal offending escalated. On 20 June 2008, he was sentenced in respect of an offence of armed robbery with offensive weapon that occurred on 4 June 2007 and was imprisoned for three years. Two offences which were committed the following day brought a prison sentence of five years with a non-parole period of three years and six months on one, and the other was taken into account on a Form 1. At the same time, for an offence of steal motor vehicle, the offender was sentenced to a term of imprisonment of one year.

21. In 2013, the offender was sentenced for contravene prohibition/restriction in AVO (domestic), by way of a s 9 bond to be of good behaviour for 12 months. He was subsequently called up for breach of that bond and sentenced to two years supervision by the New South Wales probation service.

22. In 2014, the offender was sentenced for an offence of armed robbery with offensive weapon, which occurred on 17 October 2013. He was sentenced to imprisonment for three years with a non-parole period of 18 months. A compulsory drug treatment order was made in respect of that offence, which was revoked upon call-up on 22 February 2017.

23. In 2018, the offender was sentenced to a term of imprisonment of 12 months for an offence of stalk/intimidate/intend fear/harm (domestic) and further sentenced to imprisonment for 24 months with a non-parole period of 12 months for an offence of aggravated break and enter and commit serious indictable offence. It was when he was on parole in respect of that sentence that he committed the index offence. In the same year, 2018, he was sentenced for contravening a prohibition/restriction in AVO (domestic) by way of s 10A of the Crimes (Sentencing Procedure) Act 1999 (“CSPA”). In 2020, the offender was sentenced for offences that took place in October 2019, namely, use carriage service to menace/harass/offend, for which he was sentenced to four months imprisonment and stalk/intimidate/intend fear/harm (domestic) for which he was sentenced to 10 months imprisonment with a non-parole period of seven months.

24. On 2 February 2021, the offender was sentenced for an offence of possess prohibited drug on 1 October 2020, contravene prohibition/restriction in AVO (domestic) and enter inclosed land not prescribed premises without lawful excuse, for which he was sentenced by way of an aggregate sentence of imprisonment of 12 months with a non-parole period of seven months.

25. On 27 September 2021, the offender was sentenced by way of an aggregate sentence for offences which occurred in July 2021 of assault occasioning actual bodily harm, common assault, armed with intent to commit indictable offence and wield knife in a public place, to imprisonment for 30 months with a non-parole period of 15 months.

26. As well as the above offences, the offender was convicted on numerous other charges of stealing motor vehicles, entering inclosed lands without lawful excuse, possession of prohibited drugs, drive motor vehicle whilst license suspended, negligent driving, stalk/intimidate/intend fear/harm, for which he was sentenced variously by way of fines or other non-custodial sentences.

27. Exhibit A also included the offender’s custodial history, which demonstrated amply the risk that he was at of institutionalisation.

28. Exhibit B was a bundle of parole authority material, including an order made on 28 November 2018 revoking the offender’s parole, which he commenced on 28 March 2018. It included a breach of parole report, which evidenced breaches of his supervision, together with the fact that he had been charged on 4 November 2018 with contravene prohibition/restriction in AVO (domestic).

29. Exhibit C was a Sentencing Assessment Report under the hand of Mr G Comtesse dated 9 May 2022. In it, the author set out the offender’s family and social circumstances. He has a supportive family and a 19 year old daughter who is in the custody of her mother. The author noted the offender’s extensive criminal history commencing as a juvenile. The offender acknowledged that illicit substance abuse was a significant factor contributing to his history of antisocial behaviour. Under the heading “Attitudes”, the offender had stated that he no longer wanted to live as a criminal.

30. The author noted the offender had entrenched illicit substance abuse, commencing as a teenager and that leading up to the commission of the index offence, he was under the influence of ice. He was currently engaged in a methadone program which he hoped to continue upon his release into the community.

31. The author noted that the offender stated regret for his offending behaviour and acknowledged the likely financial and mental burden that his offending had on the victims. The author further noted that the offender had mixed results whilst on supervision in the past, however, it was noted the offender now maintains a positive outlook of supervision and sees it as an opportunity to get help.

32. The offender was assessed at a medium to high risk of reoffending and a detailed supervision plan was set out for him. He was assessed as being unsuitable to undertake community service work.

The offender’s evidence

33. The offender relied on a report of Dr Paul Pusey, clinical and forensic psychologist, dated 13 April 2022. There was no objection to any part of the report of Dr Pusey. The offender was interviewed by Dr Pusey on 8 April 2022 via AVL who had been qualified with the Statement of Agreed Facts, the Indictment and the offender’s criminal history.

34. Dr Pusey noted that the offender acknowledged his guilt in relation to the index charge and stated that his motivation was to get money for drugs. He also acknowledged his significant history of criminal offending, which he claimed all stemmed back to drugs.

35. The offender identified the need to address his substance abuse and was keen to do the compulsory drug treatment program.

36. Under the heading “Psychosocial History”, Dr Pusey reported that the offender’s parents’ marriage terminated when he was 14 years of age, however, he denied any nexus between that and the onset of his substance abuse. He described himself as having had a “good upbringing”.

37. The offender completed Year 8 at school, however, he was expelled in Year 9 for disruptive behaviour. At the time of the offending, he had been working for a hoarding company, but lost his job in August 2018 due to his drug abuse.

38. Dr Pusey noted that the offender was currently abstinent from the use of illicit substances. He had commenced using cannabis at 14 years and was using heroin at age 16. He commenced using ice in his early 20s, and at the same time commenced use of benzodiazepine medications to help him “come down” from the ice. He had polysubstance abuse issues since he was 18 years of age, both in the community and in custody. His only attempts at rehabilitation were attending a residential facility for three months in 2012. He was asked to leave because he used drugs, and then he attempted the compulsory drug treatment program in 2015, however, he reoffended so he did not complete the course.

39. The offender disclosed that he had been diagnosed with depression during his time in the CDT and was engaged in psychological treatment in the community to address his depression.

40. The offender reported experiencing ongoing feelings of guilt and remorse. Dr Pusey opined that the offender would have met the criteria for a psychological or psychiatric diagnosis being that of a major depressive disorder with a comorbid diagnosis of a substance use disorder. He further opined that any treatment plan aimed at reducing his risk of recidivism will need to support his ability to better understand the factors and processes underpinning his underlying pathology and risk of relapse. His psychosocial history included being sexually abused in juvenile justice facilities and that, together with the impact of his familial breakdown and early exposure to drug abuse and antisocial behaviour/attitudes, significantly contributed to his pattern of offending.

41. Dr Pusey opined that an assessment of the offender’s risk of recidivism was “impossible to decouple from his current and ongoing psychopathology and its associated impact on his behavioural decision making in particular, his use of substances”. In his view an effective risk assessment could not be made in the absence of the offender’s more consistent engagement in treatment. He made a number of recommendations for his treatment and relapse prevention.

The offender’s submissions

42. The offender relied on a written outline of submissions which noted that the plea of guilty was entered on 18 January 2022, the day following the date the matter was listed for trial and the offender was entitled to a discount of 10%.

43. With respect to the objective seriousness of the offending, it was noted that the value of goods stolen was approximately $12,000, together with a cash register containing $600 in cash. During a search warrant executed at premises at Kingswood, goods to the value of $2,689.69 were recovered and further clothing and shoes were seized a few days later.

44. The offender conceded that the offence involved some degree of planning, which included driving to the location in the stolen vehicle, covering his face with a mask and having gloves on his hands. However, it was submitted that the degree of planning involved was not an aggravating factor, as it was a level of planning inherent in the commission of this type of offence.

45. It was conceded that the offender was on parole for an offence of aggravated break and enter at the time of this offence. This aggravating factor did not increase the objective seriousness of the offence, which was submitted to fall below the mid-range for an offence pursuant to s 112(2) of the Crimes Act 1900.

46. With respect to the offender’s subjective case, the offender relied on information provided to Dr Pusey. The offender reported a good upbringing, however his parents separated when he was 14 years and he was expelled from school halfway through Year 9 for disruptive behaviour. He had been sexually assaulted whilst in juvenile detention at age 16 and his drug use and frequent periods of incarceration prevented any stability of employment.

47. The offender commenced smoking cannabis at age 14 and by age 16 had commenced using heroin. In his early 20s, he started using ice which resulted in him committing crimes. Whilst acknowledging that drug use was not a mitigating factor, in this case it was submitted the offender had commenced drug use at a time when his parents had separated, and he was not subject to very much in the way of parental supervision. The experience of being sexually assaulted at age 16 also appears to have greatly contributed to his addiction to heroin and ice. For that reason, it was submitted that the offender’s drug use had not been entirely a “personal choice” but to some degree explained his experience as a youth and should be taken into account to moderate general deterrence.

48. It was submitted the offender had acknowledged his guilt. It was clear that the motive for the commission of the offence was to get money for drugs and the offender had expressed remorse for this impact of his offending on the victim store owners. He further reported ongoing feelings of guilt and remorse to Dr Pusey.

49. It was submitted the offender, who is now aged 42 years, and has spent much of his adult life in custody, is at risk of being institutionalised. It was submitted this could be the basis of a finding of special circumstances, relying on Jackson v R [2010] NSWCCA 162 at [24].

42. It was conceded that the offender’s prospects of rehabilitation depended almost entirely on his being able to break the cycle of drug abuse and offending. He had limited attempts at residential rehabilitation in 2012 and 2015. About three years ago he first disclosed the sexual abuse he experienced at age 16, and has been receiving treatment for that. He conceded his prospects of rehabilitation must be assessed as “guarded”.

43. It was submitted that the offender and co-offender were equally responsible for the commission of the offence. They had similar criminal histories, and both were subject to conditional liberty at the time of the offending. The principle of parity in sentencing would therefore apply.

44. The offender submitted that an extended period in the community would benefit both the offender and the community and provide him with the opportunity for treatment for his drug use, depression and pathology arising from his past history of sexual abuse. A finding of special circumstances should be made.

45. In his oral submissions, counsel for the offender confirmed that the offender had entered a plea of guilty to the offence on the s 166 certificate, namely, being conveyed in a stolen vehicle. Counsel rehearsed his submissions that the degree of planning involved was typical of this type of offence and was not sophisticated. The total proceeds from the offending amounted to approximately $9,500. This fell below the quantity of proceeds typical for such an offence.

46. Counsel rehearsed the subjective factors set out in the report of Dr Pusey (Ex 1). He had commenced using cannabis at age 14 years after his parents’ separation and with no parental supervision had graduated to use of heroin by 16 and was in juvenile detention at that age. The motive for the offending was clearly to get money for drugs. However, he had expressed remorse for the impact of the offending on the store owners.

47. Counsel rehearsed his written submissions in respect of the offender’s expression of regret, guilt and remorse to Dr Pusey and his prospects of rehabilitation. He also rehearsed his submissions in respect of the application of principles of parity and for a finding of special circumstances.

48. Counsel also submitted that the impact of the COVID-19 pandemic on those in custody should be taken into account. The offender had not been charged recently with any internal matters and was working in the factory. There had been significant lockdowns, including one period where prisoners were locked in their cells for almost two months.

The Crown submissions

57. The Crown relied on a written outline of submissions in respect of the offender and co-offender. The Crown set out well established principles of sentencing, noting that offences pursuant to s 112 are regarded as serious offending and general deterrence is an important factor in sentencing.

58. The Crown noted that the joint offence was committed in the early hours of 8 October 2018 and there were no people present. An aggravating factor was that the offence was committed in company (see s 105A(b) of the Crimes Act 1900).

59. The Crown submitted that there was some planning as to what was to be stolen and by whom. Consideration must have been given as to the maximum amount to be stolen in the shortest possible time because of the shop alarm. Both offenders travelled to the premises in a stolen vehicle and the co-offender forced the door open with a crowbar. Both offenders had their faces covered and later discarded their jackets and the stolen car in nearby suburbs. The objective seriousness of the offending was just below mid-range for an offence pursuant to s 112(2).

60. The Crown submitted it was an aggravating factor that the offence was committed whilst the offender was on conditional liberty (s 21A(2)(j) of the CSPA). The offender was on parole for an offence of aggravated break and enter committed in 2017. Further, the degree of planning was an aggravating factor pursuant to s 21A(2)(n).

61. The Crown conceded that the offender was entitled to a 10% utilitarian discount on sentence in respect of his plea of guilty.

62. The Crown noted that the offender had an extensive criminal history. The offender had been bail refused for 228 days in relation to this matter and has spent other periods in custody, in relation to other offences, since his arrest. Some of that time was in relation to serving his balance of parole. He was currently serving an aggregate sentence of 30 months for assault occasioning actual bodily harm, common assault, armed with intention to commit an indictable offence and wield knife in a public place. That sentence expires on 23 January 2024. The Crown submitted his sentence can be back-dated to take into account the 228 days.

63. In her oral submissions, the Crown submitted that the real problem in sentencing this offender was his continued, repeat offending. Even after he was charged with the index offence, the offender had continued offending. It was submitted his history of drug abuse and addiction had led to his continued reoffending and therefore protection of the community was an important factor.

64. The Crown noted that the offender had been assessed as a medium to high risk of reoffending. It was clear that drug abuse was the root of his problems and his prospects of rehabilitation were not good. He had been on the Community Drug Treatment program in 2015 but was unable to cease his drug use. For example, the breach of parole report noted that in October 2018, he had tested positive for opiates, amphetamines and benzodiazepines.

Determination

65. Section 3A of the CSPA sets out the purposes of sentencing as follows:

“3A The purposes for which a Court may impose a sentence on an offender are as follows:

(a) To ensure that the offender is adequately punished for the offence,

(b) To prevent crime by deterring the offender and other persons from committing similar offences,

(c) To protect the community from the offender,

(d) To promote the rehabilitation of the offender,

(e) To make the offender accountable for his or her actions,

(f) To denounce the conduct of the offender,

(g) To recognise the harm done to the victim of the crime and the community.”

66. The aggravated offence pursuant to s 112(2) of the Crimes Act was that the offence pursuant to s 112(1) was committed in company. In assessing the objective seriousness of the offending, I take into account all of the circumstances of the offence outlined above. The premises had been identified approximately 40 minutes prior to the offence by the co-offender. Further, as shown on Exhibit D, the co-offender forced entry into the premises with a crowbar and both offender and co-offender entered the store and stole property to the value of approximately $12,000, together with the cash register containing $600, before quickly decamping as the alarm had been activated. The serious indictable offence committed was that of larceny of the goods and cash, some of which was recovered. I find that the objective seriousness of the offending fell below the mid-range for an offence pursuant to s 112(2) and in the upper part of the low range for such an offence. It still constituted serious offending.

67. The offender’s motivation for the offending was to obtain money to feed his illicit drug habit. This was reflected in his moral culpability for the offending. It is well established that general deterrence is important in sentencing for such offences. A clear message must be sent to like-minded members of the community that such offending will not be tolerated and that in appropriate cases, the courts will impose condign punishment. Specific deterrence is also important, in that the offender must understand that his continual, repeated offending must necessarily result in increasingly lengthy sentences for his criminal conduct.

68. It was an aggravating factor that the offence occurred whilst the offender was on conditional liberty, namely, on parole – see s 21A(2)(j) of the CSPA. Further, I find that there was a degree of planning involved, such as to constitute an aggravating factor pursuant to s 21A(2)(n). It was clear that the co-offender had identified the store premises as a target shortly before the offence took place. Further, the offender and co-offender travelled to and from the offence in a stolen vehicle, which was subsequently dumped by them. They also wore face coverings so as to disguise their identity, and gloves so as to avoid detection. I therefore reject the submission made on behalf of the offender that the planning involved was at a level of planning inherent in the commission of this type of offence. However, the planning was unsophisticated.

69. The offender’s criminal history as outlined above must also be taken into account. I have regard to Veen v R (No. 2) (1998) 164 CLR 465 at 477 where the plurality said:

“The antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. The antecedent criminal history is relevant, however, to show that the incident offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience to the law. In that case retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted.”

70. The offender’s criminal history falls into the latter category. Also relevant here is the offender’s risk of institutionalisation. He is now 42 years of age and has spent a large amount of his life in custody, both as a juvenile and as an adult. Unsurprisingly, he was assessed at a medium to high risk of recidivism and unless he can address his drug addiction, that risk must be regarded as high. Having regard to the offender’s long history of drug abuse and addiction and his failure to rehabilitate on numerous occasions, his prospects of rehabilitation could only be regarded as “guarded”, if not poor.

71. The offender is entitled to a 10% utilitarian discount on sentence for his plea of guilty and I accept the submission made on his behalf that he has expressed some remorse for the impact of his offending on the victim store owners. He further expressed ongoing feelings of guilt and remorse to Dr Pusey.

72. The offender’s history of exposure to prohibited drugs at an early age, his admission into juvenile custody and whilst there, the sexual assault committed on him at age 16, have no doubt greatly contributed to his addiction to heroin and ice, and led to much of his criminal conduct. In Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37, the High Court held that profound deprivation as a child did not diminish over time and may be taken into account so as to reduce an offender’s moral culpability for the offending, as well as moderating the weight to be given to personal and general deterrence.

73. In Hoskins v R [2021] NSWCCA 169, Brereton JA said at [57]:

“There is no magic in the word ‘profound’, and it is not necessary to characterise an offender’s childhood as one of ‘profound deprivation’ before the principle is engaged. The principle is that social disadvantage may reduce an offender’s moral culpability, especially where the offending is in the nature of impulsive or learned responses to situations, arising from the circumstances of social disadvantage. Thus, the Bugmy principles may not operate to reduce moral culpability in a case where careful planning and pre-meditation is involved, such as cultivation and drug supply matters. However, engagement of the principles does not depend on the establishment of a causative link between the circumstances of deprivation and the offending.”

74. Here, the offender’s early introduction and continued abuse of prohibited drugs led to early involvement in the criminal justice system, including juvenile detention, during which he was sexually assaulted as a child, and the impact that has had on his life leading to his substance use disorder and major depressive disorder operate in this case to reduce the offender’s moral culpability for the offending and the need for general deterrence.

75. Notwithstanding that the offender did not give evidence at the sentence hearing, there was no objection to the report of Mr Pusey by the Crown and I accept the offender’s history set out therein – see Lloyd v R [2022] NSWCCA 18, and Care v R [2022] NSWCCA 101 at [73]-[75].

76. I have taken into account the maximum penalty of 20 years imprisonment and the standard non-parole period prescribed of 5 years imprisonment for the offence pursuant to s 112(2) of the Crimes Act as guideposts in the sentencing process. The standard non-parole period will not be applied here because of my finding of objective seriousness below the mid-range, together with the subjective mitigating factors set out above.

77. I do, however, find special circumstances pursuant to s 44(2) of the CSPA based on the need for the offender to have an extended period of supervision in the community to address his drug addiction and relapse prevention, his high risk of institutionalisation and the onerous conditions of custody imposed as a result of the COVID-19 pandemic.

78. I have also taken into account the time served in respect of this offence. I note that he is serving his present sentence which expires on the 23^rd of January 2024. I intend to sentence the offender to a sentence of three years and seven months imprisonment with a non-parole period of two years to be backdated by 228 days.

79. I am mindful that the offence occurred on 8 October 2018 when the offender was on parole in respect of a previous sentence. In this same year, he was sentenced for contravening a prohibition/restriction in AVO (Domestic) and subsequently, in 2020, the offender was sentenced for offences that took place in October 2019 for which he was sentenced to ten months imprisonment with a non-parole period of seven months, and on 2 February 2021, he was sentenced for a number of other offences by way of an aggregate sentence of imprisonment of 12 months with a non-parole period of seven months. Again on 27 September 2021, he was sentenced by way of an aggregate sentence for offences which occurred in July 2021 to imprisonment for 30 months with a non-parole period of 15 months. These circumstances give rise to the application of the principle of totality in sentencing. In Haak v R [2022] NSWCCA 28, Beech-Jones CJ at CL, with whom Davies and Bellew JJ agreed, said at [15]:

“The totality principle obliges a judge “who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved” (Postiglione v R (1997) 189 CLR 295 at 307-308; [1997] HCA 26; Mill v The Queen (1988) 166 CLR 59 at 62-63; [1988] HCA 70; “Mill”). It is most commonly given effect to by a sentencing judge imposing sentences that are appropriate for the individual offences and then making them partially, or sometimes wholly, concurrent (Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [45]; “Pearce”) or adopting an analogous approach for indicative and aggregate sentences. However, that is not the only means of applying the totality principle (Johnson v The Queen [2004] HCA 15; 78 ALJR 616 at [26]). For example, where an offender has previously served a sentence for an offence and is later sentenced for one or a number of offences of similar character committed in the same episode of criminality to their original sentence and the sentence for the latter offences cannot be backdated, then the only course available may be “to adopt a lower head sentence that reflects the long deferment that has taken place during which the offender has been in custody” (Mill at 66-67; Wu v R [2011] NSWCCA 102 at [53]). Depending on the legislative context, both the approach adopted in Pearce and the approach of lowering the sentence discussed in Mill are open to sentencing judges when applying the totality principle. The approach discussed in Mill is not confined to circumstances where the offender had already been sentenced by another court and the sentence to be imposed cannot be backdated (Johnson at [26]; see for example Humphries v R; Ponfield v R [2016] NSWCCA 86).”

80. No submissions were made to me at the sentence hearing about the application of the principle of totality in these circumstances, however as I consider the index offence here to be entirely separate from the offences for which he was sentenced in 2018, 2019 and in February 2021 and September 2021, and not part of the same series of offences or episodes of criminality, I make no further adjustment to the head sentence.

Orders

81. I hereby order as follows.

1. You are convicted of the offence of aggravated break and enter and commit serious indictable offence pursuant to s 112(2) of the Crimes Act 1900.

2. I sentence you to a non-parole period of two years to commence on 1 November 2021 and to expire on 31 October 2023.

3. The balance of term will be a period of one year and seven months to commence on 1 November 2023 and to expire on 31 May 2025.

4. You are convicted of the offence on the s 166 certificate, namely, being carried in conveyance without consent of owner pursuant to s 154A(1)(b) of the Crimes Act 1900.

5. Pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999, I impose no further penalty upon you for that offence.

Amendments

24 June 2022 - paragraph [81] - correction of a miscalculation in term of imprisonment

Decision last updated: 24 June 2022