defendant. Convicted of aggravated break and enter and commit serious indictable offence (s112(2) Crimes Act 1900). Sentence: term of imprisonment 2 years (would otherwise have been 2 years 8 months after...
Key principles
A custodial sentence was the only appropriate disposition for aggravated break and enter in the circumstances of this case; the s5 threshold of the Crimes (Sentencing Procedure)...
Where an offender's youth, severe mental health needs and risk of institutionalisation are shown to be special circumstances under s54B(3) of the Sentencing Act, the court may...
Mental illness and related factors that are causally connected to the offending reduce moral culpability and limit the appropriate weight of general and specific deterrence as...
An early plea of guilty at the earliest opportunity attracts a utilitarian discount; in this case a 25% reduction was applied to the otherwise appropriate sentence.
Issues before the court
Whether a non-custodial sentence was available or whether the s5 threshold for imprisonment was met.
Whether the standard non-parole period should be varied and what special circumstances justify deviation under s54B(3) of the Sentencing Act.
Plain English Summary
Sonny Brown, a 21-year-old Aboriginal man with a history of childhood sexual abuse, severe substance dependence and mental illness including auditory hallucinations, pleaded guilty to aggravated break and enter where a co-offender entered a 54-year-old woman's home at night and the defendant acted as look-out. The court found the offending serious, the s5 threshold for imprisonment satisfied and that the defendant's youth, mental health and risk of institutionalisation were special circumstances under s54B(3). The judge applied a 25% plea discount, backdated the sentence to 30 June 2019, and imposed a head sentence of 2 years imprisonment with a non-parole period of 1 year. The court recommended psychiatric and neuropsychological assessment and directed reports be provided to Justice Health.
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Deep Dive
1,819 words · generated 22/06/2026
The appropriate allowance for an early plea of guilty.
How mental health, intellectual impairment and disadvantaged background affect moral culpability and sentence.
Cited legislation
1 cited instrument linked from this judgment.
What happened
Facts and procedure
The accused, Sonny Brown (born 1998), pleaded guilty to aggravated break and enter and commit a serious indictable offence contrary to s112(2) of the Crimes Act 1900. The offence occurred on 30 March 2019 when a co-offender entered the bedroom of a 54-year-old female victim sleeping alone. The intruder was observed by the victim and escaped through a front window after being disturbed. The accused acted as a lookout outside the house. The victim’s handbag, containing personal cards and $40, a Samsung S9 mobile phone, a Samsung tablet, and prescription medications including Endone, Valium and Oxycodone were taken (Agreed Facts).
Police located stolen property at the accused’s residence shortly after the offence. The accused resisted arrest on that occasion, leading to a separate Form 1 matter (resist officer in execution of duty).
The accused has an extensive background of disadvantage: sexual abuse in childhood, long-standing polysubstance abuse from adolescence, functional illiteracy, neuropsychological concerns including reported memory problems and head injuries, and a history of suicidal ideation and auditory hallucinations. Forensic psychological and clinical reports were tendered (Exhibit 4).
Procedurally, the District Court (Weinstein SC DCJ) heard submissions and reports, accepted an early plea, applied a 25% plea discount, found imprisonment was unavoidable (s5 threshold) and that special circumstances justified varying the statutory standard non-parole period under s54B(3). Orders were made convicting the accused and sentencing him to a 2 year term of imprisonment, backdated to 30 June 2019, with a non-parole period of 1 year. Directions were given for further psychiatric/neuropsychological assessment and for Justice Health to receive the psychologist’s report.
Exhibits and key evidence
The Crown tendered a comprehensive bundle including agreed facts, charge certificate, criminal and custodial history.
Defence tendered psychological and clinical material: a forensic psychologist’s report (Ms Godbee), a Justice Health report, AMS client records, a Mental Health Act Form 1 and hospital records. These documents described severe mental health symptoms (major depression, auditory hallucinations), traumatic childhood sexual abuse, long-standing polysubstance dependence and cognitive/educational impairment.
Why the court decided this way
Central legal questions
Was a custodial sentence necessary (s5 threshold)? The Crown argued it was; defence accepted the threshold was enlivened. The judge expressly held that no non-custodial alternative was appropriate given the facts and circumstances.
Were there special circumstances warranting deviation from the statutory standard non-parole period? Both parties agreed special circumstances existed. The court identified specific mitigating features (youth, significant mental health needs, risk of institutionalisation and serious social disadvantage) and reduced the statutory standard non-parole period accordingly.
What weight should be given to the offender’s mental health and background disadvantage in relation to culpability and the purposes of sentencing? The judge found the offender’s mental state likely contributed to the offending and accordingly reduced his moral culpability; that also attenuated the role of deterrence.
Reasoning, in summary
Objective seriousness: The court balanced the seriousness of a home invasion and the personal significance of stolen items against the monetary value. The judge acknowledged the severe impact on the victim and described the invasion of the victim’s home as "of the utmost seriousness." The offence occurred while the offender was on conditional liberty and involved some planning and joint enterprise.
Mental health and background: The court accepted the forensic material showing major depression, auditory hallucinations telling the offender to kill himself, childhood sexual abuse, substance dependence since early adolescence and functional illiteracy. Relying on authorities including DPP v De La Rosa and Bugmy, the judge treated these matters as reducing moral culpability and altering the weight to be given to deterrence.
Early plea: The offender pleaded guilty at the earliest opportunity and received a utilitarian discount of 25%.
Special circumstances and variation: The judge explicitly found special circumstances under s54B(3) (youth, risk of institutionalisation and treatment needs) and deviated from the standard non-parole period of five years to a 50% ratio (non-parole period equal to half the head sentence).
Custodial threshold and backdating: The court found the s5 threshold satisfied, imposed imprisonment and backdated the sentence to 30 June 2019, referencing the accepted authorities on backdating (Callaghan).
Practical effect
The result balanced denunciation and protection of the community against significant mitigation arising from the offender’s mental health and disadvantaged background. A custodial sentence was required, but the non-parole period and the overall term were moderated by those mitigating features and the plea discount.
Before and after state of the law
Before
The sentencing framework in New South Wales is guided by the Sentencing Act (Crimes (Sentencing Procedure) Act 1999) and the purposive list in s3A. Standard non-parole periods and legislative guideposts inform sentencing ranges for particular offences. Authorities such as Bugmy set out how background disadvantage and intergenerational trauma affect culpability, and DPP v De La Rosa assists in assessing the causal link between mental illness and offending.
What this decision adds (or confirms)
This judgment applies existing principles in the NSW sentencing scheme: it confirms that severe mental illness and serious background disadvantage can be recognised as special circumstances that justify deviating from statutory standard non-parole periods. It also demonstrates the district court’s approach to quantifying deviation (adopting a 50% ratio in the circumstances). The court emphasised that mental illness can both reduce culpability and reduce the weight to be given to general and specific deterrence, while not exculpating the offender.
Continuity with precedent
The decision follows and applies established authorities: Bugmy (disadvantage), DPP v De La Rosa (mental illness linkage), Callaghan (backdating), Markarian and Muldrock (sentencing process and purposes). It does not create novel legal principles; rather it exemplifies the proper application of statutory provisions and case law to a fact pattern combining property offending with significant mental health and background disadvantage.
Key passages with plain-English translation
"This offence, one in which a victim's private and sacred space is invaded, is of the utmost seriousness."
Plain English: Breaking into somebody’s home while they sleep is a very serious type of crime because it violates personal safety and privacy.
"The offender has pleaded guilty to the offence at the earliest opportunity. He is entitled to a utilitarian discount of 25%."
Plain English: Because the accused admitted guilt early, the court reduced the sentence it would otherwise have given by 25% as a reward for the plea.
"In my opinion, the state of the offender's mental health likely contributed to, and is linked to the commission of the offence ... the offender's moral culpability is thus reduced, although it does not exculpate the offender."
Plain English: The judge accepted that the accused’s mental illness helped cause the crime, so he is less blameworthy than he otherwise would be; but he is still responsible and must be punished.
"I find that there is no alternative to a sentence of imprisonment being imposed."
Plain English: After considering everything, the judge concluded that a prison sentence is necessary; a community-based sentence was not suitable.
"I have deviated to a ratio of 50% because of special circumstances."
Plain English: The judge reduced the usual statutory non-parole percentage to 50% (so the non-parole period equals half the head sentence) because special mitigating factors were proved.
What fact patterns trigger this precedent
Patterns that make this decision persuasive for similar outcomes:
Property offending involving a nocturnal home entry where a victim is awakened and personal space is invaded.
Offenders who participated in a joint enterprise, even if in a lookout role.
Offenders with substantiated severe mental illness that is causally connected to the offending (e.g. auditory hallucinations, major depression, suicidal ideation).
Young offenders with extensive childhood disadvantage and trauma, including history of sexual abuse, homelessness, long-term substance dependence and educational deficits.
Early guilty plea, significant rehabilitative engagement in custody, and evidence of prospects for treatment, but where the threshold for imprisonment is nonetheless met.
Cases where custody is necessary for community protection but the offender’s background reduces moral culpability sufficiently to justify deviation from standard non-parole periods.
What is less likely to be analogous
Offences involving significant violence to victims or high-value thefts where public protection and denunciation may overwhelmingly favour longer parole-free periods.
Cases lacking credible evidence linking mental health to the criminal conduct.
How later courts have treated it
(Observations about likely reception and persuasive value)
This decision is a robust example of applying Bugmy and De La Rosa principles at district court level. Higher courts will look for clear identification of special circumstances and the reasoning that connects them to a quantifiable departure from the statutory guideposts. The decision’s emphasis on the causal link between mental illness and offending follows NSW appellate guidance and High Court authority and is therefore likely to be treated as consistent with established law.
As a single-district-court decision, it is persuasive but not binding on other courts. It will be most influential in sentencing courts faced with similar factual matrices: juvenile or young adult Aboriginal offenders with severe trauma-linked mental illness who committed non‑violent home invasions and plead early.
Still-open questions
Quantification of deviation: The judge selected a 50% ratio for deviation from the standard non-parole period. While justified by identified special circumstances, appellate scrutiny typically requires clear analytic steps showing how numeric departure is proportional to the mitigating features. How granular must that reasoning be to satisfy appellate review?
Causal link proof standard: The judge accepted that mental illness 'likely contributed' to the offending. The boundary between sufficient causal connection (to reduce culpability or the weight of deterrence) and speculative inference may be contested in other cases; courts will continue to test the evidentiary threshold required for such findings.
Role of the lookout: This court treated the lookout role as not substantially reducing culpability given joint enterprise principles. The precise circumstances in which being outside the premises materially reduces culpability remain fact-dependent and unsettled in proportional terms.
Rehabilitation versus community protection: The decision balanced the offender’s treatment needs against community safety by selecting a custodial sentence with early parole eligibility. Future cases will continue to test where that balance lies, particularly for offenders with high treatment needs but also nontrivial community risk.
Treatment delivery in custodial settings: The decision recommended psychiatric and neuropsychological assessments and referral to Justice Health. How systemic constraints (availability of timely treatment in custody, continuity on release) should affect sentencing choices remains an operational issue that courts increasingly recognise but cannot resolve alone.
Concluding practical point
For practitioners: when arguing mitigation based on mental health and disadvantage, ensure a linked evidentiary foundation showing causation or significant contribution to the offence, provide practical rehabilitation plans (including residential placements and medication continuity), and address community protection to persuade the court to treat such factors as special circumstances for variation of statutory guideposts.
Judgment (29 paragraphs)
[1]
Judgment
The offender Sonny Brown, born in 1998, is before the court for sentence for aggravated break and enter and commit serious indictable offence, contrary to section 112(2) of the Crimes Act 1900 for which the maximum penalty is 20 years and the standard non-parole period is 5 years.
There is also a Form 1 matter which the offender asks me to take into account when sentencing him, which is a charge of resist officer in execution of duty, contrary to section 58 of the Crimes Act 1900.
[2]
Evidence
Before me are 8 exhibits. Exhibit 1 is a bundle of documents prepared by the Crown which includes:
1. The Notice of Committal;
2. The Charge Certiticate;
3. The Form 1;
4. The section 166 certificate;
5. The Agreed Facts;
6. The offender's criminal history; and
7. The offender's custodial history.
Exhibit 2 is a COPS report on bail conditions.
Exhibit 3 is a letter from the victim dated 26 February 2020.
Exhibit 4 is a bundle of documents prepared by Ms Socorro on behalf of the offender, which includes:
1. A psychologist report of forensic psychologist Megan Godbee dated 14 February 2020;
2. A Justice Health Report by Clinic Nurse Consultant (mental health) Jodie Massey produced on 16 July 2019;
3. South Coast Medical Service Aboriginal Corporation (AMS) Patient Summary from 21 January 2020 to 14 February 2020;
4. AMS client engagement letter from Nathaniel Curtis dated 18 April 2019;
5. A K10 assessment and referral to AMS from general practitioner Dr Samuel Baxter dated 12 July 2017;
6. A Mental Health Act Form 1, and clinical notes from Nowra Acute Mental Health Team dated 11 December 2019; and
7. Clinical notes and discharge summary from the emergency department of Shoalhaven District Memorial Hospital dated 16 January 2019 and 30 March 2019.
Exhibit 5 is a formal offer of entry to Oolong House dated 26 February 2020.
Exhibit 6 is a letter from Aboriginal Field Officer, Arthur Wellington, dated 2 March 2020.
Exhibit 7 is a bundle of health related documents for the offender with respect to 4 March 2020.
Exhibit 8 is a letter to the court from the Oolong Aboriginal Corporation.
I was greatly assisted by the able written and oral submissions of Ms Socorro on behalf of the offender and Mr Wilcox-Watson on behalf of the Crown.
The Agreed Facts are as follows:-
[3]
Section 112(2) Offence
1. The offender in this matter is Sonny Brown.
2. The victim is 54 years of age, who resides by herself at Nowra.
3. On the morning of Saturday 30 March 2019, the victim was in her bed asleep. Her bedroom door was ajar, and light entered the bedroom from the hallway. At about 3.30am, she was suddenly awoken by a noise in her room. She looked around and observed a person at her dresser. She rolled over and yelled. 'who is it?'
4. The victim observed a male, approximately 20-25 years of age, with dark skin. He was thin and fit and wore a white jumper and dark pants. He had short curly hair.
5. When the victim yelled, the male ran from the room. She heard him go into her front lounge room. There was a loud banging and crashing as he exited via the front window.
6. The offender was situated on the street as the "look out". The victim got out of bed and went to the front door and saw the offender in the street. She recognised him as a young male named 'Sonny' who walks past her house daily and has a distinctive action when he walks - he limps and throws his shoulder back.
7. The victim went to call police, but her phone was missing. She walked across the road and used a neighbour's phone to telephone the police, and then waited out the front with her neighbour.
8. The victim's handbag, which was brown with white lace around the bottom, was missing. It had her purse inside which contained her licence, bank cards, Medicare card and other personal items including $40 cash. Her Samsung s9 mobile was also missing as was her son's Samsung tablet. Her medication had been disturbed, and Endone, Valium and Oxycodone tablets were missing from the lounge room.
9. The three cars in her front yard had been accessed. Their doors had been left open and 2 mobile heater lights were stolen from one of them.
10. At 3.39am, police responded to a call over the police radio, which reported that the victim had awoken to find a male going through her bedroom drawers before jumping out of the window and decamping on foot. En route, police were advised that the victim had said that the offender looked like a local male named "Sonny".
11. When the police arrived, the victim was shaking and crying. Police observed that the flyscreen from the top left window and the window was open. The victim stated that the window was generally open only a few centimetres with the flyscreen attached. Below the window, police observed cushions which were ordinarily located in the victim's lounge room. The cupboards and drawers in the lounge room and two bedrooms were open.
12. The items reported by the victim as being stolen were:
1. 1 x brown handbag with white lace;
2. 1 x purse with personal cards, Medicare card and licence;
3. $40 cash;
4. A purple Samsung s9 and a Samsung tablet; and
5. Medication (Valium, Endone and Oxycodone).
1. Police conducted a COPS search on the offender and ascertained that he resided at a local address in Nowra. At 4.08am, police attended the residence. On arrival, they observed a male looking out of a window. The offender's brother opened the door. He said the offender was home and pointed towards the kitchen area.
2. As police approached the kitchen, they observed the offender seated and slumped over the dining table. The observed a brown handbag with white lace around the bottom.
3. Police pointed to property on the table. The offender's brother told police that he had no idea where the offender got the property from, and he pointed to a tablet and a phone.
4. The property was seized.
[4]
Form 1 Matter
1. Police had the offender's hands behind his back attempting to handcuff him. They told him to stop pulling. He was resisting police by bending his arms and moving about. Police continued to attempt to handcuff the offender who continued to resist arrest.
2. The offender then began to wrestle with police. The offender's brother told him to stop. The offender tried to exit through the dining room window, but police had hold of him. Police applied bursts of capsicum spray into the offender's face which caused him to fall on the ground. He continued to resist police.
3. The offender was conveyed to Nowra Police Station.
4. At about 8.25am, police attended the victim's home and returned her handbag and purse, tablet, phone and a pair of shoes. She went through her purse and found that the $40 cash was missing along with her Commonwealth Bank visa debit card.
5. The victim informed police that a "3 in 1 bathroom light" was also missing.
6. On 30 March 2019, police attended the residence of the offender to return some clothing. Whilst present they enquired with the offender's father about the "3 in 1 heating light" and the Commonwealth Bank card belonging to the victim. The offender's father invited police inside and they observed the "3 in 1 bathroom light" in the lounge room. In the dining room, the offender's brother pointed to a small floral clutch bag, sunglasses and leather strapping. Police seized those items. The victim subsequently confirmed ownership of those items and they were returned to her.
[5]
Exhibit 1
The offender has a criminal history of note. He has committed multiple offences of larceny cover multiple years. He has driving related charges and one charge of enter vehicle or boat without consent of owner/ occupier. He has several charges of assault occasioning actual bodily harm for which he received prison sentences. He further has been found guilty of break enter and steal less than or equal to $60,000, shoplifting and resist or hinder police officer in the execution of duty.
[6]
Exhibit 3
The victim wrote a letter to the court, detailing the impact the offence has had on her life. She said that the offender "took any freedom, security and safety away from me" and that she cannot sleep at night anymore. I pause here to say that this offence, one in which a victim's private and sacred space is invaded, is of the utmost seriousness. The court recognises the real harm caused to the victim in this instance.
[7]
Exhibit 4
Ms Godbee interviewed the offender by audio visual link (AVL) for approximately one and a half hours. She reported that the offender was in a special education class in high school and that his presentation was consistent with someone with intellectual difficulties. He has specific difficulties with reading and writing and is functionally illiterate. On two occasions during the interview, the offender became so distressed that he expressed an imminent risk of self-harm ("if I had a gun right now, I'd shoot myself"). The offender described a history of auditory hallucinations which he said were always present.
Mr Brown grew up as 1 of 12 children born to his parents. His parents separated when he was approximately 9 years old. After his parents' separation, the children moved to a mission to live with their paternal grandparents. The offender noted that he was surrounded by his cousins on the mission and that he witnessed and engaged in many fights with them. Two of his older male cousins sexually abused Mr Brown on several occasions when he was approximately 11 years old. At age 15 he began 'couch surfing'. He then began stealing cars and using drugs. He said that, upon release, he would like to find work as a mechanic or bricklayer. The offender stated that he has "been hit by a few cars" and experiences memory problems. He has been assaulted, following which he has lost consciousness.
The offender stated that he first consumed alcohol at age 13 and estimated that he consumed up to 40 standard drinks per day throughout his teens. Mr Brown began smoking cannabis every day from age 13 and estimated that he consumed over $100 of cannabis per week. He also inhaled petrol during his early teens. He began using methylamphetamine every day at age 14, using up to $200 per week. He began using ecstasy regularly from age 17 and heroin every second day from age 18. He continued using substances during his previous periods in custody and began abusing buprenorphine during his most recent release. The offender also described a history of problematic gambling. However, the offender stated that he stopped using all substances when he entered custody about a year ago, explaining that he now has his children to think about.
The offender stated that he completed the Equips addiction program during his previous period on parole, although he continued to engage in polysubstance abuse throughout the program, which the report writer believed suggested limited insight. Ms Godbee is of the opinion the offender has complex treatment needs, and will likely need intensive support to transition back into the community if he is not to return to drug use and offending.
[8]
Exhibit 5
Mr Brown received a formal offer of entry to Oolong House on 26 February 2020. Conditions of entry included not to consume any illegal substances, alcohol or non-prescribed drugs.
[9]
Exhibit 6
Mr Wellington, Aboriginal Field Officer, offered to transport Mr Brown to Oolong house. The offender was released on bail to Oolong House on 2 March 2020, but was taken back into custody within days.
[10]
Exhibit 7
The notes of the South Coast Medical Service Aboriginal Corporation of 4 March 2020 indicate that the offender was released (on bail) from Goulburn jail on 3 March 2020 and that he was requesting his usual anti-depressant medication Avanza. He was given a Ventolin puffer and a plan was made to chase his medical record so that his medication was confirmed and he could book an appointment to pick up a script.
[11]
Exhibit 8
The letter from Oolong Aboriginal Corporation to the court says that the offender entered Oolong House on 3 March 2020, but that he left on his own accord on the night of 7 March 2020 knowing that he would be in breach of his bail conditions. Authorities and next of kin were notified.
[12]
Mr Brown's evidence
The offender gave evidence before me on 27 February 2020 and 31 March 2020, and he corroborated many of the significant matters set out in Exhibit 4. He told me that he was without his stabilising medication at Oolong House. When he left, he tragically relapsed and took drugs for the first time in more than 11 months. He was picked up by police in a bad state on 10 March 2020. He told me that he has still not had access to his stabilising medication, and that his mental state has deteriorated in custody. I note that the offender had previously been abstinent of all illegal substances whilst in custody, and has not had any since his return.
[13]
Plea of Guilty
The offender has pleaded guilty to the offence at the earliest opportunity. He is entitled to a utilitarian discount of 25%.
[14]
Objective Seriousness
The Crown submits that Mr Brown's offending falls in the lower part of mid-range of objective seriousness for offending of this type, for the reasons which follow.
Ms Socorro submitted that the serious indictable offence for which Mr Brown is being sentenced is larceny, which is towards the low end of seriousness for serious indictable offences that can be committed within the scope of s 112(2) offences.
The Crown submits that this fact should not be given undue weight or be determinative of the objective seriousness of the offending. He observes that in R v Huynh [2005] NSWCCA 220, Simpson J, as her Honour then was, said at [27]:
The assessment of where the offence lies in the range of offences of its type is to be made by reference to all of the facts and circumstances of the offence, and to the range of offences of its kind which come before the court. One circumstance which is here of relevance in that assessment is the quantity and value of the property stolen. It is not to the point that the property was recovered. It was, in fact, stolen, before being recovered. The fact that the maximum penalty for stealing barely takes that offence into s112(2) does not of itself determine where the offence lies in the scale of gravity of offences against s112(2). Certainly, one might ordinarily expect that offences involving violence would be regarded as more serious than stealing. But that does not preclude a finding that an offence under s112(2), where the "serious indictable offence" is larceny, being classified as in the middle of the range.
[15]
Items stolen
The Crown notes the items stolen, and says that whilst there is no evidence as to their value, as personal items they likely had a greater personal value to the victim than merely their resale value.
Ms Socorro concedes that the value of goods would not be insignificant to the victim.
The Crown submits that stealing a mobile phone involves an invasion of privacy and that stealing a wallet with personal cards, similarly involves an invasion of privacy that is difficult to quantify. Further he says that the stealing of prescription medication carries the risk of causing adverse medical consequences to a victim left without her medication. The Crown submits that this increases the objective seriousness of the offending.
The Crown submits that the offence took place in the home of the victim, where she lived alone. She awoke to find the co-offender near her bed, after the co-offender had forced entry into her home through a window.
The offender took part in the offending in company, as part of a joint criminal enterprise, and he acted as a lookout. Whilst it may not have been a sophisticated operation, it involved a degree of planning or foresight.
The Crown noted that the offending took place whilst the offender was on conditional liberty.
[16]
Offender's role as a Lookout
The Crown said that the agreed facts show that Mr Brown took part in the offending as part of a joint criminal enterprise, and that he acted as a lookout. In certain cases, he submitted, the actual role that an offender plays in a joint criminal enterprise can affect his culpability. However, here there is no evidence as to the degree of planning that took place or of the respective roles that Mr Brown and his co-offender played leading up the offence. Therefore, in the absence of any evidence as to the offender's specific role, he bears criminal responsibility for the full range of criminal acts done by all parties to the enterprise.
The Crown submits that the court should not find that the objective seriousness of Mr Brown's offending is reduced by the fact he was a lookout. He says that this should be considered a neutral factor in analysing the objective seriousness.
Ms Socorro submits that in the case of R v Mouzomenos [2005] NSWCCA 203, the sentencing judge determined that one of the reasons the co-offender was less culpable was that he had acted as a "cockatoo", staying outside of the premises. She submits that is the case here. Furthermore she says that there is no evidence that the offender played a key or any role in planning, that there is no evidence of a sophisticated level of planning or organisation and that his role is lesser then the co-offender who entered the premises. She accepts that the offender had the victim's handbag close in proximity to him when the police entered his premises, and that all other items were located at the premises in which he resided.
Ms Socorro submits that the offence falls within the low range of objective seriousness.
I have had regard to all the submissions made by the parties. In my opinion, it is plain that there was some planning but the operation was not sophisticated. Whilst the items taken were not of a great monetary value, they were items of significance to the victim. I also take into account the legislative guideposts of the maximum penalty of 20 years imprisonment and the standard non-parole period of 5 years. The guideposts demonstrate the seriousness with which the legislature considers such a crime. In my view, taking all matters into account, the offending falls somewhere between the low and mid-range of objective seriousness for offending of this type.
[17]
Mental Health
The offender has a significant and troubling history of suicidal ideation and self-harm. Mr Brown reported hearing voices telling him to kill himself. The offender has received a provisional diagnosis of major depression.
It was submitted by Ms Socorro that on balance, the offender's mental state around the time of the offences and since being in custody, should have a bearing on sentencing considerations. The offender clearly has significant need for treatment and rehabilitation outside of the custodial environment. Furthermore, Ms Socorro submits that due to the offender's mental health issues, he is not an appropriate vehicle for general deterrence and that specific deterrence should be moderated.
In my opinion, the factors set out in DPP v De La Rosa [2010] NSWCCA 194, are present here. In particular I find that the state of the offender's mental health likely contributed to, and is linked to the commission of the offence. He gave evidence that he could not recall much about the offending and that he was in a bad mental state at the time. In my opinion, the offender's moral culpability is thus reduced, although it does not exculpate the offender. It also has the consequence that the offender is less of an appropriate vehicle for general deterrence, which will result in a reduction in the sentence I would have otherwise have imposed. It also reduces the significance of specific deterrence.
[18]
General Deterrence
The Crown submits that there is a legitimate community expectation that offending of this kind should be met with condign punishment. So much is true, as "the invasion of people's homes and the plundering of their property is a social evil for which the community looks for protection to the law… and the criminal courts": R v Hayes [1984] 1 NSWLR 740, per Street CJ. As I have said, general (and specific) deterrence have a limited role to play in this sentencing exercise. That is not to say that denunciation has no role to play.
[19]
Youth
Ms Socorro submits that the court should take into account the relative youth and immaturity of the offender. He is a very young man of 21 years of age. I take his youth into account.
[20]
Disadvantage
To say that the offender has suffered disadvantage in his past is an understatement. I find that he has suffered sexual abuse, homelessness, illiteracy, substance abuse, neuropsychological issues and mental health issues all from a young age. The Bugmy v The Queen (2013) 249 CLR 571 factors are present here, and also go to reducing his culpability. I note the oft cited passage of Simpson J, as her Honour then was, in R v Millwood [2012] NSWCCA 2, where she explained the relevance of evidence of an offender's background of deprivation. In that case, she said:
[69]…I am not prepared to accept that an offender who has had the starting life the respondent had bears equal moral responsibility with one who has had what might be termed a normal or advantaged upbringing. Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his or her behavioural decisions.
[21]
Remorse and Prospects of Rehabilitation
It was submitted by Ms Socorro that the offender has prospects of rehabilitation due to his youth, and critically in my opinion, his abstinence from illicit substances whilst in custody and his plans upon release. I note his recent failed admission to Oolong House, which I do not count against him. Unfortunately, at that time he was without his stabilising medication. Indeed, notwithstanding that failure, I do not believe he is irredeemable. I find that the offender has some prospects upon his release, but only if he is carefully monitored and supervised whilst on parole, and when he is stabilised on appropriate medication.
I note that in evidence before me, Mr Brown expressed his remorse articulately. I accept that his remorse is genuine.
[22]
Prior Criminal History
Mr Brown's criminal record discloses, inter alia, a history of property offending. The Crown submits, and it is not in dispute, that he is not entitled to any leniency on account of his criminal history.
[23]
Time in custody
The offender has been in custody (including several days of quasi custody at Oolong House) since 30 March 2019, not all of which is referrable to this offence. The present offending took place whilst the offender was on bail. There is no doubt that I have a discretion to backdate the commencement date of this sentence, and the Crown did not disagree that some backdating would be appropriate: Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145. I backdate the offender's sentence to 30 June 2019.
[24]
Threshold
The Crown submits that s 5 threshold of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Act) is enlivened. That is not disputed by Ms Socorro. I find that there is no alternative to a sentence of imprisonment being imposed.
The Crown further submits that in the interests of community safety and in accordance with the principles of sentencing in the Sentencing Act, the offender should be sentenced to a period of full-time custody. I agree, but I take into account those matters already referred to in this sentence judgment.
[25]
Standard Non Parole Period and Special Circumstances
Mr Wilcox-Watson and Ms Socorro agree that the court should find special circumstances as a result of Mr Brown's youth, mental health requirements and risk of institutionalisation, and that some variation of the statutory sentencing ratio should follow.
Given the terms of s54B(3) of the Sentencing Act, I indicate that my reasons for deviating from the standard non-parole period (which is imprisonment for 5 years) are the special circumstances that I find, that is the offender's youth, his risk of institutionalisation given the time he is spent in jail during his adult life and the considerable guidance and intervention he will require to treat his drug and alcohol issues and to facilitate the stabilisation of his mental health. I have deviated to a ratio of 50% because of special circumstances.
[26]
Form 1
As indicated earlier, I have been asked to take an offence into account on a Form 1 basis when sentencing the offender, the details of which I have already set out above. In this matter, this has the effect of slightly increasing the sentence that would otherwise have been imposed. In this case, given what I have already said about general deterrence, the increase operates to recognise the community's entitlement to retribution for the Form 1 offence, although the focus remains on the primary offence. I have taken this offence into account and I have carefully considered s33 of the Sentencing Act and the judgment of Spigelman CJ in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1) of 2002.
[27]
Sentence
I have taken into account the various purposes of sentencing under s3A of the Sentencing Act. They include ensuring an offender is punished for his or her conduct, deterring crime, protecting the community, promoting an offender's rehabilitation, making an offender accountable for his or her actions, denouncing an offender's conduct and recognising the harm done to victims of an offence in the community. As always, the facts and circumstances of the present offence and this offender highlight how the various purposes of sentencing pull in competing directions - especially given in my opinion the offender's need for psychiatric review and ongoing rehabilitation.
As the High Court said of s3A in Muldrock v The Queen (2011) 244 CLR 120 at [20]:
The purposes there stated (in s3A) are the familiar, overlapping and, at times, conflicting, purposes of criminal punishment under the common law (Veen v The Queen (No 2) at [476-477]). There is no attempt to rank them in order of priority and nothing in the Sentencing Act to indicate that the court is to depart from the principles explained in Veen v The Queen (No 2) [at 476] in applying them.
The instinctive process of sentencing requires consideration of the relevant facts and circumstances as they are known to the court, including the facts surrounding the commission of each offence, matters affecting relative seriousness, the offender's subjective circumstances and other aspects which bear upon the question of sentence, including the guideposts of the maximum penalty and the standard non-parole period and the factors referred to in s21A of the Sentencing Act. The sentencing court is required to identify the factors relevant to the sentencing discretion and then to make a value judgment as to the appropriate sentence in all the circumstances (Markarian v The Queen [2005] HCA 25).
As I have said, in determining an appropriate sentence I have kept in mind the two legislative guideposts, the maximum penalty of 20 years and the standard non-parole period of 5 years.
[28]
Orders
Mr Brown, please stand.
You are convicted of aggravated break and enter and commit serious indictable offence, contrary to section 112(2) of the Crimes Act 1900.
Taking into account the matter on the Form 1, and after allowing a 25% discount for your plea of guilty, you are sentenced to a term of imprisonment for 2 years. Your sentence would otherwise have been 2 years 8 months. Your sentence will be backdated to 30 June 2019.
I impose a non-parole period of 1 year, which will expire on 29 June 2020.
Your head sentence will expire on 29 June 2021.
I recommend that Justice Health be provided with the report of Ms Godbee dated 14 February 2020 and that a neuropsychological assessment be obtained if possible.
Mr Brown, do you understand the orders I have made?
[29]
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Decision last updated: 24 November 2020
Convicted of aggravated break and enter and commit serious indictable offence (s112(2) Crimes Act 1900). Sentence: term of imprisonment 2 years (would otherwise have been 2 years 8 months after discount), backdated to commence 30 June 2019. Non-parole period 1 year; head sentence to expire on 29 June 2021. Directions for psychiatric and neuropsychological assessment and recommendation to Justice Health.
Mr Brown identifies as Aboriginal and indicated that he has experienced racism throughout his life. In Ms Godbee's view, he is impacted by the "intergenerational trauma of colonisation that has contributed to his people's overrepresentation in the offending, substance-using and victim populations." On the day prior to the offence, Mr Brown stated that he had consumed 12 pills of ecstasy, a bottle of whisky and $300 worth of ice.
The offender entered into his first relationship at age 14 and stayed together with his partner until shortly before he entered custody. He has two children to other relationships. He was admitted to the mental health ward of a hospital due to thoughts of self-harm prior to his arrest, and is currently prescribed Avanza. He has had multiple suicide attempts, but he denied any current suicidal planning. Mr Brown described himself as "anxious" and stated that he hears voices that tell him to kill himself.
In Ms Godbee's opinion, it was difficult to glean a clear mental health picture of the offender. She recommends that the offender be referred for a psychiatric assessment because of his hallucinations. She also believes that he requires individual psychological treatment to help him develop a broader repertoire of emotional coping skills. She also suggests that he undertake a neuropsychological assessment because of his history of heavy alcohol abuse and repeated head injuries.
Clinical Nurse Consultant Ms Massey stated that the offender reported the onset of depressed moods during early adolescence. He also described a traumatic childhood, using methamphetamines from the age of 15. He reported suicidality. She was of the opinion that he would benefit from lengthy cognitive behavioural therapy.
The AMS client engagement letter states that the offender participated in the South Coast Medical Service Aboriginal Corporation men's group for social, emotional wellbeing support. They offered intensive support to help address his addictions.
The K10 assessment provided a basis for a provisional diagnosis of major depression. Doctor's notes suggest that the offender was sexually assaulted by older cousins when he was 8 years old, and that he suffers anxiety attacks.
Other documents indicate that the offender was scheduled and admitted to the acute mental health inpatient unit at Shellharbour Hospital in December 2018.