Sentencing Bench Book — Particular offences

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: R v 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 [10-405].

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 R v Ponfield: R v Webster [2005] NSWCCA 110 at [26]. In R v Webster, the applicant relied on the absence of most of the aggravating features identified in R v 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 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 R v 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.”

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]:

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:

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.

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.

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 v R 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].

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 v R 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.

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.

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].

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).

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 The Queen v De Simoni (1981) 147 CLR 383 and infringed s 21A(4): at [85]–[90].

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].

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]. Such an approach does not amount to impermissible double-counting: BB v R [2017] NSWCCA 189 at [38]. 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].

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 R v 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]: