Break and enter offences

[17-000] The statutory scheme

Part 4, Div 1, Subdivision 4 Crimes Act 1900 (NSW) (“the Act”) contains a number of break and enter offences. These include:

  • break out of a dwelling-house after committing, or enter with intent to commit, an indictable offence (s 109, maximum penalty 14 years)

  • break, enter and assault with intent to murder (s 110, maximum penalty 25 years)

  • enter a dwelling house with intent to commit a serious indictable offence (s 111, maximum penalty 10 years)

  • break, enter and commit a serious indictable offence (s 112, maximum penalty 14 years)

  • break and enter with intent to commit a serious indictable offence (s 113, maximum penalty 10 years)

  • being armed with intent to commit an indictable offence (s 114, maximum penalty 7 years), and

  • being a convicted offender armed with intent to commit an indictable offence (s 115, maximum penalty 10 years).

There are aggravated and specially aggravated forms of offences under ss 109, 111, 112 and 113 with corresponding greater maximum penalties. The circumstances of aggravation and special aggravation are defined in s 105A(1). Section 115A provides that where the more serious offence is charged but not established, an alternative verdict may be reached on the basis of the non-aggravated offence.

[17-010] Break, enter and commit serious indictable offence: s 112(1)

Section 112(1) makes provision for the offence of break, enter and commit a serious indictable offence. The term “serious indictable offence” is defined by s 4 of the Act as an indictable offence that is punishable by imprisonment for life or for a term of five years or more. Section 112(1) therefore encompasses a wide range of offences and criminality: Kelly v The Queen [2007] NSWCCA 357 at [19]; Testalamuta v R [2007] NSWCCA 258 at [38].

The seriousness of the “serious indictable offence” is an appropriate matter to consider on sentence: R v Huynh [2005] NSWCCA 220. However, this factor alone is not determinative; the objective seriousness of the offence depends on “all the facts and circumstances of the offence, and … the range of offences of its kind which come before the court”: R v Huynh, above, at [27]. As to objective seriousness for standard non-parole period offences see The Standard non-parole period offences — Pt 4 Div 1A at [7-890].

[17-020] Break, enter and steal: s 112(1)

Break, enter and steal has long been regarded as a serious crime by the legislature and the degree of criminality involved should not be underrated by sentencers (R v Hayes (1984) 1 NSWLR 740 at 742), affirmed in subsequent cases R v Jones (unrep, 30/6/94, NSWCCA); R v Maher [2004] NSWCCA 177 at [44] and R v Harris (2007) 171 A Crim R 267 at [24]–[28]. General deterrence is a particularly important sentencing consideration for break and enter offences, or, as put in R v Maher, above, at [44] the courts need “to send a very clear message to others who may be minded to conduct themselves in a similar fashion that if they come before the courts they will be punished severely”.

The court in R v Harris, above, at [30] quoted with approval the remarks of the sentencing judge in R v Scott [1999] NSWCCA 434 quoted at [17], that the incidence of break, enter and steal throughout the State is “cause for grave disquiet”; “the community are understandably angry and frustrated at the seeming immunity enjoyed by the burglar”; further, “it is a notorious fact that householders face huge premiums, as well as the vast expense of making their homes secure”; and that:

the community has the rightful expectation that judicial officers will act responsibly and impose meaningful penalties on the rare occasion when the burglar is apprehended and convicted. Other would-be burglars just might be deterred when it is learnt that the crime of break, enter and steal is regarded as being grossly serious and will attract serious punishment.

New South Wales retains the highest full-time imprisonment rate for break and enter/burglary offences (77%), across Australia when the offence is dealt with on indictment in a middle tier jurisdiction such as the District or County Court. The full-time imprisonment rate is also high in comparison to other common law jurisdictions including New Zealand, England and the United States: See S Indyk and H Donnelly, “Trends in the use of full-time imprisonment 2006–2007”, Sentencing Trends & Issues, No 36, Judicial Commission of New South Wales, p 9.

Guideline judgment

In R v Ponfield (1999) 48 NSWLR 327, the Court of Criminal Appeal (Grove J, Spigelman CJ and Sully J agreeing) considered whether the prevalence of s 112(1) offences involving larceny, and the inconsistency of sentences imposed, warranted the promulgation of a guideline judgment.

The court declined to specify a sentencing range or starting point for sentences, in view of the great diversity of circumstances in which the offence is committed: see [43] and [46]. The court was not able to identify a useful typical scenario, as in the armed robbery guideline of R v Henry (1999) 46 NSWLR 346, or a particular standard of general application, as occurred in R v Jurisic (1998) 45 NSWLR 209. A further significant consideration was the fact that the Crown elects to have the majority of offenders charged under s 112(1) dealt with in the Local Court, where the maximum penalty that can be imposed is two-years’ imprisonment: see [8] and [44]. The court outlined the appropriate considerations that are to be taken into account on sentence for offences of break, enter and steal. This approach of listing relevant factors in a guideline was subsequently approved by the joint judgment in the High Court decision of Wong v The Queen (2001) 207 CLR 584 at [60].

In Ponfield the court expressed the guideline (at [48]–[49]) as follows:

Guidelines

A court should regard the seriousness of offence contrary to s 112(1) of the Crimes Act 1900 as enhanced and reflect that enhanced seriousness in the quantum of sentence if any of the following factors are present. Necessarily, if more than one such factor is present there is accumulative effect upon seriousness and the need for appropriate reflection.

(i) 

The offence is committed whilst the offender is at conditional liberty on bail or on parole.

(ii) 

The offence is the result of professional planning, organisation and execution.

(iii) 

The offender has a prior record particularly for like offences.

(iv) 

The offence is committed at premises of the elderly, the sick or the disabled.

(v) 

The offence is accompanied by vandalism and by any other significant damage to property.

(vi) 

The multiplicity of offences (reflected either in the charges or matters taken into account on a Form 1 pursuant to s 21 of the Criminal Procedure Act 1986). In sentencing on multiple counts regard must be had to the criminality involved in each: Pearce v The Queen (1998) 72 ALJR 1416.

(vii) 

The offence is committed in a series of repeat incursions into the same premises.

(viii) 

The value of the stolen property to the victim, whether that value is measured in terms of money or in terms of sentimental value.

(ix) 

The offence was committed at a time when, absent specific knowledge on the part of the offender (a defined circumstance of aggravation — Crimes Act s 105A(1)(f)), it was likely that the premises would be occupied, particularly at night.

(x) 

That actual trauma was suffered by the victim (other than as a result of corporal violence, infliction of actual bodily harm or deprivation of liberty — defined circumstances of aggravation: Crimes Act s 105A(1)(c), (d) and (e)).

(xi) 

That force was used or threatened (other than by means of an offensive weapon, or instrument — a defined circumstance of aggravation Crimes Act s 105A(1)(a)).

It will of course be requisite for a sentencing court to give appropriate weight to matters in mitigation as manifest in the particular case. These will include evidence of genuine regret and remorse and any rehabilitative steps taken by the offender. Whilst addiction to drugs and alcohol is a relevant circumstance for the court to consider it is not of itself a mitigating factor. (See R v Henry supra at pars [193]–[203] and [217]–[259]).

The prior record qualification

Guideline (iii) above — “The offender has a prior record particularly for like offences” — was disapproved and not followed in the five judge bench decision of R v McNaughton (2006) 66 NSWLR 566 Spigelman CJ at [23]–[24] and Grove J at [66]–[76]. Prior offending is to be ignored when assessing the objective seriousness of the crime. It is not an “objective circumstance” for the purposes of the application of the proportionality principle. It is not open for a court to use prior convictions to determine the upper boundary of a proportionate sentence: McNaughton at [25]; Veen v The Queen (No 2) (1988) 164 CLR 465; Baumer v The Queen (1988) 166 CLR 51. However, prior convictions may be relevant to the determination of whether leniency should be extended: Shaw v R [2008] NSWCCA 58 at [21]; Pattison v R [2007] NSWCCA 186 at [39]. See further Prior record at [10-400].

Guideline should not be applied arithmetically

Sentencing for the offence of break, enter and steal is not an arithmetical process of tallying the presence or absence of the aggravating or mitigating features identified in Ponfield: R v Webster [2005] NSWCCA 110 at [26]. In Webster, the applicant relied on the absence of most of the aggravating features identified in Ponfield (at [22]) to support a submission that the objective seriousness of the offence did not warrant the sentence imposed. In rejecting this approach the court stated at [26]:

the reliance upon the guideline judgment in Ponfield is misconceived. Sentencing in relation to these kinds of offences does not involve simply adding up aggravating features. It involves a qualitative analysis of the particular facts surrounding the relevant offences, which includes the part played by particular aggravating features …

Aggravating factors not included in Ponfield

The court in R v King [2003] NSWCCA 352 held that an offence committed after escaping from custody does not fall within the conditional liberty aggravating factor identified in Ponfield. However, it is an aggravating factor nonetheless, and one, “in a scale of seriousness”, above the fact of being on conditional liberty at the time of offending: at [38]. The court held at [39] that an: “‘offence committed whilst the offender is unlawfully at large’ should notionally be added to the table in Ponfield.”

[17-025] Totality and break and enter offences

The principle of totality will rarely, if ever, justify wholly concurrent sentences for a series of break and enter offences: R v Merrin (2007) 174 A Crim R 100 at [38] citing R v Harris (2007) 171 A Crim R 267 at [38]–[42]. The court in Harris at [40] warned that failing to at least partially accumulate sentences for multiple offences may result in an offender escaping punishment for the second and subsequent offences.

See further Structuring sentences of imprisonment and the principle of totality at [8-230].

[17-030] Summary disposal

An offence under s 112(1) is to be dealt with summarily by a Local Court, except where the prosecutor or the person charged elects to have the matter dealt with on indictment: Criminal Procedure Act 1986 s 260, or where the serious indictable offence alleged is stealing or maliciously destroying or damaging property and the value of the property stolen or destroyed, or the value of the damage to the property, does not exceed $60,000: Criminal Procedure Act Sch 1 Table 1 Pt 2 cl 8. JIRS statistics reveal that the vast majority of break, enter and steal offences are dealt with in the Local Court and Children’s Court.

Where an offence that could have been dealt with summarily is prosecuted on indictment, the court may have regard to that fact but only in the exceptional circumstances outlined in Zreika v R [2012] NSWCCA 44 at [107]–[109].

See further Objective factors (cf s 21A(1)) at [10-080].

[17-040] Aggravated and specially aggravated break, enter and commit serious indictable offence

Section 112(2) provides for a more serious offence where a person commits an offence under s 112(1) in circumstances of aggravation. Pursuant to s 105A(1), “circumstances of aggravation” means circumstances involving any one or more of the following:

(a) 

the alleged offender is armed with an offensive weapon, or instrument

(b) 

the alleged offender is in the company of another person or persons

(c) 

the alleged offender uses corporal violence on any person

(d) 

the alleged offender maliciously inflicts actual bodily harm on any person

(e) 

the alleged offender deprives a person of his or her liberty, and/or

(f) 

the alleged offender knows that there is a person, or there are persons, in the place where the offence is alleged to be committed.

Section 105A(2) provides that the matters referred to in paragraph (c), (d) and (e) above may occur immediately before, at the time of or immediately after, any of the elements of the offence.

Where the circumstances in paragraph (f) are charged in aggravation, the defendant is presumed to have known that the premises were occupied, unless the court is satisfied that there existed reasonable grounds for believing there was no one in the place.

In R v Huynh [2005] NSWCCA 220, Simpson J said of the circumstances of aggravation defined in s 105A at [29]:

the assessment of objective gravity must be made by reference to the particular facts of the case. There is no gradation of the circumstances of aggravation set out in s 105A. In saying this, I would accept that, generally speaking, certain of the circumstances of aggravation specified would, as a matter of common sense, appear to be more serious than others. One would expect that being armed with an offensive weapon, for example, or the use of corporal violence, or deprivation of liberty, would ordinarily, be regarded as more serious than committing an offence in company. But all depends upon the particular circumstances of the individual case.

Section 112(3) provides for an offence of greater seriousness still where a person commits an offence under s 112(1) in circumstances of special aggravation. Pursuant to s 105A(1), “circumstances of special aggravation” means circumstances involving either or both of the following:

(a) 

the alleged offender wounds or maliciously inflicts grievous bodily harm on any person;

(b) 

the alleged offender is armed with a dangerous weapon.

Section 105A(2) provides that the matters referred to in paragraph (a), above, may occur immediately before, at the time of or immediately after any of the elements of the offence.

[17-050] The standard non-parole period provisions

A standard non-parole period of five years for s 112(2) and seven years for s 112(3) is prescribed for an offence committed on or after 1 February 2003: s 54B Crimes (Sentencing Procedure) Act 1999. Section 54D(2) provides the standard non-parole period “… does not apply if the offence for which the offender is sentenced is dealt with summarily”.

Guideline judgments such as Ponfield remain relevant to the sentencing exercise notwithstanding the introduction of standard non-parole periods: R v Way (2004) 60 NSWLR 168 at [55] and [122].

For a detailed list of appeal cases, see SNPP Appeals menu option on the Judicial Information Research System (JIRS). For consideration of the sentencing principles applicable to the standard non-parole provisions, see further Standard non-parole period offences — Pt 4 Div 1A at [7-890].

Crimes Act, s 112(2) — breaking etc into any house etc and committing serious indictable offence in circumstances of aggravation

Assessing objective seriousness

Section 4 of the Crimes Act 1900 provides that a “serious indictable offence” is one punishable by imprisonment for natural life or for a term of five years or more. The provision therefore covers a wide range of criminality.

One of the relevant matters in assessing objective seriousness is the number of aggravating features present: Maxwell v R [2007] NSWCCA 304 at [26]. Simpson J said in R v Huynh [2005] NSWCCA 220 at [30]:

it is only common sense that, generally speaking, the more circumstances of aggravation [in s 112(2)] are present, the more serious will be the offence. But it does not necessarily follow that it is wrong to place an offence with only one such circumstance in the mid-range category.

Stealing

In R v Huynh, above, at [27], the court did not accept the applicant’s argument that is it unrealistic to classify an offence of break, enter and steal as “towards the mid-range” because larceny only carries a maximum penalty of five years, which is within the bottom of the range of serious indictable offences. The maximum penalty of a serious indictable offence does not of itself determine where the offence lies in the scale of gravity of offences against s 112(2). The assessment of the objective seriousness is to be made by reference to all the facts and circumstances of the offence and to the range of offences of its kind which come before the court. As to the assessment of standard non-parole period offences under s 112(2) see Standard non-parole period offences — Pt 4 Div 1A at [7-890]ff. In R v Harris (2007) A Crim R 267 at [29], the court said of stealing:

Grove J’s remarks [in guideline judgment] and those quoted and made in Marshall v R [2007] NSWCCA 24 certainly make it doubtful whether an offence of or involving breaking, entering and stealing could ever justify a sentence at the top of the ranges for which s 112(1) and (2) provide. Nevertheless the maxima of 14 years and 20 years provided by those subsections still leave plenty of scope for the imposition of heavy sentences where the addition to the elements of breaking and entering is stealing.

In Marshall v R [2007] NSWCCA 24, the court held at [34]–[40] that for break, enter and steal cases under s 112(2), the guideline judgment in R v Ponfield (1999) 48 NSWLR 327 assists in evaluating the seriousness of the offence. Therefore, the type of premises entered, the nature and value of the property taken, and whether there is substantial damage to, or ransacking of, the contents of the premises are relevant considerations. The court must also consider the element of aggravation relied upon, both as to its nature and what was actually done. The aggravating factors present should be assessed individually and in combination.

Prevalence, prior record and conditional liberty

The prevalence of an offence, an offender’s prior criminal history and conditional liberty are not relevant to an assessment of the objective seriousness of an offence under s 112(2): R v Johnson [2004] NSWCCA 140 at [33]; R v Van Rysewyk [2008] NSWCCA 130 at [25]. However, the statement in Lovell v R [2006] NSWCCA 222 that an offender’s motivation may be relevant should now be read in light of Muldrock v The Queen (2011) 244 CLR 120.

Provocation by the victim

In a number of cases where the offence of aggravated break and enter was committed following provocation by the victim (the offender being motivated by a desire for retribution), the court has assessed the criminality as falling significantly below the mid-range or at the lower end: Lovell v R, above, at [63]; R v Price [2005] NSWCCA 285 at [23]; R v Millar [2005] NSWCCA 202 at [43]; R v Tory [2006] NSWCCA 18 at [37]. The court held in Lovell that the offence fell below the middle range of objective seriousness because the applicants were not motivated by personal gain to acquire property but, rather, by the victim’s lewd conduct towards the applicant’s 15-year-old sister.

When deciding whether to impose a term of full-time imprisonment for an offence under s 112(2), it is permissible to take into account whether “… right minded members of the community would regard the criminality of [the] offence as such that it ought be denounced by a sentence of imprisonment”: Leese v R [2007] NSWCCA 108 at [22].

Corporal violence

Where the use of corporal violence is charged as an element of aggravation, the sentence must reflect the difference between this element and the infliction of actual injuries, “lest it be thought that there is no point in limiting the violence used to commit crimes”: Gray v R [2007] NSWCCA 366 at [28]. Although the offences in Gray were correctly described as “serious, violent, cruel and callous”, it was an exaggeration to describe them as “extremely” so where no physical injuries were actually inflicted.

Aid and abet

The standard non-parole period of five years also applies to offences of aiding and abetting an aggravated break and enter under s 112(2). In R v Merrin (2007) 174 A Crim R 100, the respondent pleaded guilty to several offences of aiding and abetting an aggravated break, enter and steal. The court held at [43] and [47] that the sentencing judge had fallen into error by failing to make any reference to the standard non-parole period and by failing to consider the objective seriousness of the offence. In this case, the error resulted in sentences that were manifestly inadequate.

Domestic violence

In Shaw v R [2008] NSWCCA 58, the respondent was sentenced for an offence under s 112(2) of aggravated break, enter and maliciously inflict actual bodily harm. The applicant and the victim had been in a domestic relationship for approximately five years until shortly before the offence. The court held at [24] that the applicant’s genuine display of remorse, as a mitigating factor under Crimes (Sentencing Procedure) Act 1999, s 21A(3)(i), was outweighed by the need in cases involving domestic violence for general and specific deterrence, denunciation of the conduct involved, and protection of the community. The fact that the victim had expressed forgiveness and attempted to adopt responsibility for the offence could be of little relevance, as such “self interest denying forgiveness” was well known to the courts as a factor which inhibited the prosecution of domestic violence offences: at [27].

Crimes Act, s 112(3) — breaking etc into any house etc and committing serious indictable offence in circumstances of special aggravation

The range of sentences available for an offence under s 112(3) is influenced by the broad scope of criminality encompassed by the section: Kelly v The Queen [2007] NSWCCA 357 at [19]. In Testalamuta v R [2007] NSWCCA 258, the applicant pleaded guilty to breaking and entering a house, knowing a person was inside, and using a gun therein to intimidate a person who was to be called as a witness in judicial proceedings. The court found no error in the sentencing judge’s finding that the offence was in the upper range of seriousness. The court held at [38] that the serious indictable offence in this case (threatening a witness with intent to influence) was of “particular gravity”, and that it therefore justified an increment of approximately 50% on the standard non-parole period.

In Kelly (also a case of break, enter and intimidate with a gun) the fact that the gun was neither loaded nor discharged did not “diminish the seriousness of the conduct”: at [34]. Nor was the seriousness of the intimidation mitigated by the absence of express verbal threats, the intimidation consisting of menacingly pointing a gun directly at people: at [32].

In R v Chaaban [2006] NSWCCA 107, a non-parole period of less than one-third of the standard non-parole was found to be manifestly inadequate: at [48]. The respondent pleaded guilty to a charge of specially aggravated break and enter [steal]. The circumstance of special aggravation was the fact that the victim was wounded. In the course of a struggle to escape during a home invasion, the victim sustained a number of injuries, including lacerations to his head and face, and having his forearm almost severed with a machete. The court held that the sentencing judge failed to appreciate the seriousness of offences involving home invasions, as reflected in the decisions of R v Ponfield (1999) 48 NSWLR 327 and R v Henry (1999) 46 NSWLR 346: at [49]. His Honour also failed to appreciate the greater seriousness of offences under s 112(3) compared to those dealt with in Henry: at [49].

[17-060] Application of the De Simoni principle

The Queen v De Simoni (1981) 147 CLR 383 is authority for the proposition that a sentencer is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence. An offence that carries a higher maximum penalty than the offence for which the offender is being sentenced will be a more serious offence for the purposes of this principle: R v Booth (unrep, 12/11/93, NSWCCA); R v Channells (unrep, 30/9/97, NSWCCA).

Practices adopted by sentencing judges to avoid error, such as making it clear that the principle has been considered and setting out the facts on which the applicant can and cannot be sentenced, are reflected in cases such as R v Baugh [1999] NSWCCA 131 at [15]; R v Channels, above, and R v Smith [2002] NSWCCA 378 at [11].

Taking into account other “circumstances of aggravation” in a s 112(3) offence

A court may properly take into account circumstances of aggravation (as described in s 105A(1) of the Crimes Act) which are not alleged in the indictment, when sentencing for an offence under s 112(3). In R v Li (unrep, 9/7/97, NSWCCA) the offender was sentenced for an offence of specially aggravated break, enter and rob, being armed with a dangerous weapon. The sentencing judge took into account other circumstances of aggravation, including that the accused was in company and deprived the victim of his liberty. The court held that this was permissible as these circumstances of aggravation grounded a less serious offence, namely one under s 112(2), than that for which the offender was being sentenced. The De Simoni principle was therefore not applicable. This aspect of the decision in Li was followed in Marshall v R [2007] NSWCCA 24 at 10

Form 1 offences and De Simoni

In R v BB [2005] NSWCCA 215 at [13], the sentencing judge was confronted with the difficult task of attempting to appropriately deal with the criminality involved in the s 112(2) offence while taking into account a malicious wounding offence on a Form 1 — without effectively sentencing the applicant for the s 112(3) offence. The judge succeeded. The court confirmed (at [25]) that if the judge had taken into account the wounding it would have infringed the De Simoni principle.

[17-070] Application of s 21A to break and enter offences

Section 21A(2) Crimes (Sentencing Procedure) Act 1999 sets out aggravating features which are to be considered “in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law”: s 21A(1).

Writing extra-judicially, Howie J opined that s 21A(2) has limited operation where there is a guideline judgment for an offence. In “Section 21A and the Sentencing Exercise” (2005) 17(6) Judicial Officers’ Bulletin 43 at 44, his Honour said:

The guideline judgments are offence specific. The facts relevant to a determination of whether or not the guideline applies will generally merely be specific aspects of the aggravating and mitigating factors in s 21A. There will be few, if any, aggravating or mitigating features to take into account once the specific offence-related matters have been considered.

For example, roman numeral (ii) of the guideline judgment refers to “professional planning” and planning is referred to as an aggravating factor in s 21A(2)(n). The error of double counting aggravating features that are referred to in a guideline judgment and s 21A(2) occurred in the robbery case of R v Street [2005] NSWCCA 139, where Hoeben J said at [35]:

There was a further problem in this case in that his Honour first considered the guideline judgment in R v Henry which referred to factors, the absence or presence of which indicated that the guideline judgment was applicable and then by way of separate analysis took into account the specific factors referred to in s 21A albeit in a collective and non-specific way as has been described. This exacerbated the risk of aggravating factors being double counted.

There is nothing to suggest that the approach taken by the court in Street would not be applied to R v Ponfield (1999) 48 NSWLR 327, the guideline judgment.

In some instances, however, the statutory criteria contained in s 21A(2) is relevant notwithstanding the existence of a guideline judgment. See further Section 21A factors at [11-000]ff.

Section 21A — break and enter case examples

Element of offence cannot further aggravate offence or be used under s 105A as circumstance of aggravation

In R v Price [2005] NSWCCA 285, the applicant was convicted of aggravated break enter and commit serious indictable offence (assault occasioning actual bodily harm [AOABH]) pursuant to s 112(2). The circumstance of aggravation engaged was that the offender knew that a person was in the dwelling at the time of the offence. The court held at [28]–[31] that the sentencing judge erred by referring to the use of actual violence under s 21A(2)(b) as an aggravating factor. The use of violence was an element of the offence of AOABH and could not further aggravate the offence. Similarly in Aslett v R [2006] NSWCCA 49 at [110], it was held that the use of actual violence could not constitute an aggravating factor for the purposes of s 21A(2)(b), as it was itself an element of robbery, the serious indictable offence charged pursuant to s 112(3).

Error to take into account that the offence was committed in company where offence charged under s 112(1)

In R v Knight (2005) 155 A Crim R 252, the applicant was charged with several offences of break, enter and steal pursuant to s 112(1). The court held that the sentencing judge erred by taking into account as an aggravating factor under s 21A(2)(e) the fact that the offences were committed in company. The applicant was not charged with an aggravated form of the offence, which would have attracted a higher penalty. The approach taken was contrary to principles in R v De Simoni (1981) 147 CLR 383 and infringed s 21A(4): at [85]–[90].

Error to take into account the use of actual violence where it is an element of the offence

In R v Baxter [2005] NSWCCA 234, the applicant was convicted of inter alia break, enter and steal in circumstances of aggravation, namely using corporal violence: s 112(2). The court held that the sentencing judge erred by taking into account the use of actual violence pursuant to s 21A(2)(b) as an aggravating factor in the offence under s 112(2) as it was already an element of the offence. Reference was also made to the fact that some of the offences committed under s 112(1) were in company, thereby breaching the De Simoni principle at [28]–[32].

Offence was committed in the victim’s home as an aggravating feature

Section 21A(2)(eb) Crimes (Sentencing Procedure) Act 1999 lists as an aggravating feature the fact that “the offence was committed in the home of the victim or any other person”. A judge is entitled to take into account, as an aggravating feature, the fact that the offence was committed in the victim’s home even though the element of breaking and entering under s 112(2) does not require that the premises be the home of the victim: Palijan v R [2010] NSWCCA 142 at [21]–[22]; R v Bennett [2014] NSWCCA 197 at [13]. There is something repugnant about the forced entry of an offender into a house and violating the safety of that place by attacking those who reside there: Palijan v R at [22].

Planned or organised criminal activity

A sentencer is entitled to take into account elements of planning and organisation as an aggravating factor regardless of whether planning is a common feature of break and enter offences: R v Rich [2007] NSWCCA 193 at [21]. It is impermissible to double count planning in (ii) of the guideline and planning under s 21A(2)(n). Where the level of planning is not great, the degree of sophistication will determine the weight to be accorded to this factor. In Rich, the times of offending and the nature of the items stolen indicated an element of planning for the purposes of s 21A(2)(n), albeit that the offences were carried out ineptly. Where there are co-offenders, it will be of little relevance that an accused person may not have been personally involved in the planning: R v Cornwall [2007] NSWCCA 359 at [56]. Section 21A(2)(n) is concerned with planning and organisation as a characteristic of the offence, not the offender. This approach is to be contrasted with the one taken in an assault with intent to rob case of Legge v R [2007] NSWCCA 244, where Simpson J said at [34]:

Section 21A(2)(n) was not, in my opinion, intended to be used to aggravate an offence where the offender being sentenced was not involved in, or part of, the planning and organisation.

[17-080] Double punishment — Pearce v The Queen (1998) 194 CLR 610 at 614

Where the criminal conduct involved in a break and enter offence overlaps with conduct for which the offender has already been punished in relation to another offence, an appropriate credit for the time served should be granted. In R v Stewart [2005] NSWCCA 290 the applicant was sentenced for an offence of break, enter and steal under s 112(1). Several of the items stolen (watches) were also the subject of a charge of goods in custody, for which a period of imprisonment had already been served. The court held at [26] that, because the conduct involved in the earlier offence was necessarily a direct result and part of the conduct involved in the later offence, the sentencing judge should have allowed a credit for the time already served. His Honour’s failure to do so resulted in the respondent being effectively punished twice for the same offence or for the overlapping criminal conduct: Pearce v The Queen (1998) 194 CLR 610 at 614.