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 The offence, which occurred on 8 October 2018, was committed whilst the offender was on parole, however that parole was revoked on 4 November 2018 in respect of other matters.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…