By Paul Gregoire and Ugur Nedim
The NSW Court of Criminal Appeal handed down a guideline judgment in relation to sentencing for break, enter and steal, contrary to section 112(1) of the Crimes Act 1900 (NSW) on 16 December 1999. And this offence then carried 14 years, but these days, makes one liable to 12 years.
Sentencing judgments were a recent addition to the justice system at that time, as then NSW Chief Justice James Spigelman had rolled out the policy in August 1998 to clear up discrepancies, and in this case, that included both first time offenders and reoffenders often receiving similar sentences.
The court set out that on sentencing, a judge should consider any conditional liberty, prior offences, planning, disadvantage to victims, vandalism, multiplicity of offences, repeated circumstances, value of goods taken, and any trauma or threat suffered by the victim/s.
The NSW Director of Public Prosecutions sought a guideline in regard to section 112(1), due to a recent case that saw an inadequate sentence given to a Robert Ponfield, as well as further appeals that were being held against the severity of sentences in three other break and enter cases.
The Criminal Procedure Act 1986 (NSW) (CP Act) then, as now, carries stipulations that see the majority of these crimes dealt via the NSW Local Court, where they are tried summarily and the crime only carries a maximum of 2 years, while an accumulative sentence cannot exceed 5 years.
A guideline warranted
In 1999, section 112(1) offences relating to break, enter and steal of property not exceeding $15,000 were tried in the NSW Local Court due to since revoked table 1 of the CP Act. These days, this occurs when the value of property stolen doesn’t exceed $60,000 as per schedule 1 of the CP Act.
The section 112(1) offence can relate to other types of crimes committed on breaking and entering, such as assault or vandalism, but the stipulation regarding break, enter and steal not exceeding $15,000 currently being $60,000, means now, as then, most of these crimes go to the Local Court.
Then NSW Court of Criminal Appeal Justice Michael Grove said in 1999 that the reason a guideline in relation to break, enter and steal was warranted as the NSW attorney general had requested, under section 37 of the Crimes (Sentencing Procedure) Act 1999, was due to its prevalence.
“The contention by the DPP that there exists a trend towards undue leniency was based upon detection of such, as articulated in two judgments of this court and statistical analysis of some sentencing information,” his Honour continued.
And he specifically pointed to the 1984 case R versus Hayes, in which questions were raised regarding giving “inadequate weight to the legislative policy, which fixes 14 years as the statutory maximum for this offence”, while 1994’s R versus Jones, found this sentencing trend continued.
But Justice Grove pointed out that while a charge of break, enter and commit a felony under section 112 of the Crimes Act usually involves stealing, it doesn’t always do so, which is why there is such significant room for a heavier penalty to be applied in cases that don’t involve property theft.
His Honour further added that it is unlikely that a higher court would ever deal with a case in relation to simple break, enter and steal, unless it applied to significant multiple counts of the crime, along with at least one considerably more serious charge.
The idea of leniency being a sentencing issue was rejected by Justice Grove, but what gave him further reason to provide a guideline was that there were statistics showing a considerable group of such offenders with no convictions receiving terms of four years or more, as were those with priors.
The guideline judgment
In 1999, it was found that 9 percent of prisoners serving time were doing so for section 112 break, enter and steal offences, and statistics were produced that showed that if the average sentences for such offenders were increased then the state would be looking at prison overcrowding.
His Honour added that such a guideline could be given in relation to this crime in terms of indicating a starting point for sentences, linking it to specify an appropriate range of terms or, thirdly, it could indicate relevant sentencing considerations without establishing a starting point or range.
And according to Justice Grove, the third type of guideline was called for in this case, so, even though the NSW DPP sought a guideline providing for specific sentencing this was rejected, as his Honour found this wasn’t possible due to the wide range of diversity of circumstances involved.
So, in sentencing for a section 112(1) of the Crimes Act break, enter and steal offence, a judge must consider whether a range of factors were involved in the commission of the crime and if they have been, then they result in steeper punishment as they have an accumulative effect upon time served.
These include whether the offender was on conditional release, the type of planning involved in the commission of the crime, any criminal record for similar offences, whether the crime targeted “the elderly, sick or disabled”, if vandalism was involved, as well as the value of any items taken.
Further aspects that aggravate the crime and hence stiffen penalties imposed include whether there was a multiplicity of offences, if it was a repeat offence on the same premises, whether it occurred at a time when the occupier was likely to be home, along with any trauma suffered or threat made.
“It will of course be requisite for a sentencing court to give appropriate weight to matters in mitigation as manifest in the particular case,” Justice Grove made clear in ending his findings.
“These will include evidence of genuine regret and remorse and any rehabilitative steps taken by the offender,” he continued, adding that “whilst addiction to drugs and alcohol is a relevant circumstance for the court to consider it is not of itself a mitigating factor”.
And Chief Justice Spigelman and then fellow NSWCCA Justice Brian Sully agreed with their colleague’s guideline judgment assessment.
