5 His Honour was applying the well-known principle that when further offences are committed whilst the offender is on conditional liberty, that constitutes an aggravating circumstances. (See eg Re Attorney-General's Application [No 1]; R v Ponfield (1999) 48 NSWLR 327 at 337).
6 The Crown relied on this finding, which counsel for the Respondent challenged. It was submitted to us that his Honour had erred with respect to the date of the first offence being 5 May 2000. His Honour indicated, in the passage quoted, that the parole had expired on 27 May 2000. The two break enter and steal counts were committed on 5 and 6 June 2000. His Honour identified the earliest offence as occurring on 5 May 2000, and if his Honour was in error, that does not appear in the materials before us. However, it must have been a reference to property, the subject of one of the receiving counts. One of those counts referred to property received on 5 June 2000. However, property was found relating to break enter and steal offences which had occurred, according to his Honour's judgment, over the previous two weeks. His Honour's inference was that the date on which the property had been received by the Respondent from one of these offences was 5 May 2000.
7 Accordingly, the circumstance of committing a further offence whilst on conditional liberty is an aggravating aspect, if the facts were as his Honour put it, only for one of the receiving counts. It is not an aggravating aspect for either of the break enter and steal counts. As the latter are the more serious charges, it will not be, in any event, a significant factor. His Honour's failure to comply with the requirement to identify sentences separately for each offence, in accordance with the High Court's authority in Pearce, is manifest in his Honour's statement that he would take this matter into account as an aggravating feature with respect to all of the offences.
8 The Court retains a discretion, notwithstanding the identification of the error, to refrain from intervening. Whether it should intervene in this respect is, of course, subject to the well-known restrictions on the circumstances in which Crown appeals should be upheld.
9 The two counts of break enter and steal occurred at Bulli and Coledale on 5 June 2000 and 6 June 2000 respectively. On each occasion, the modus operandi was the same. The Respondent drove a co-offender, Benjamin Watego, to the respective residential premises. He entered the premises while she remained as a lookout. The Respondent then drove the vehicle away. During the offence at Bulli, the two offenders were disturbed and only succeeded in removing jewellery. A significant quantity of electrical items, which had been placed near the garage, was left behind. After the offence at Coledale, the police stopped the car and discovered a quantity of stolen electrical items in the boot and on the back seat. They arrested both the Respondent and Watego.
10 During the course of a search executed on 6 June 2000 at the Respondent's home, the police discovered property that had been stolen on other occasions. These were the subject of the three counts of receiving. With respect to a video camera, it appears that the co-offender Watego had taken that item of property whilst the Respondent and Watego were present at a house in Thirroul on 5 June 2000. The Respondent asserted that it was taken without her knowledge, but when she received it from Watego, she knew that it was stolen. In addition, property from a number of other break and enter offences, which had occurred, it appears, over some previous period, about two weeks, was discovered at her home.
11 The Respondent is now 36 years of age. A significant factor in the exercise of the sentencing discretion was the long list of previous convictions dating back to 1982. These included one count of break enter and steal, for which she was sentenced to six months in April 1987; a series of offences including one count of break enter and steal and a count of stealing for which she was sentenced to a fixed term of three months commencing on 7 June 1990; a conviction of stealing and other counts on 5 December 1994 for which she received 150 hours of community service; a conviction for a range of offences including twelve counts of break enter and steal, four counts of obtaining financial benefit by deception and counts of receiving and of stealing for which she was sentenced to a minimum term of twelve months commencing on 26 September 1995 and an additional term of four months; a conviction on three charges of break enter and steal for which she received a minimum term of sixteen months to commence on 2 May 1997 and an additional term with conditions of twenty months.
12 It has long been recognised that prior convictions must be taken into account on sentencing for property offences. This has specifically been applied to the offence of break enter and steal in this Court's guideline judgment with respect to the offence. (See Re Attorney General's Application (No 1); R v Ponfield supra).
13 The objective circumstances of the offence, in the context of this record of persistent infringement, was such that, subject to subjective considerations and having regard to s5 of the Crimes Sentencing Procedure Act 1999, only a full-time custodial sentence can be regarded as appropriate in the circumstances of this case.
14 Over a long course of criminal conduct the Respondent has shown complete disrespect for her fellow citizens and their property. She has intruded on the privacy of the homes of her fellow citizens in a persistent and determined course which has inflicted substantial justifiable anguish and suffering on many members of the community. Only the most compelling of subjective cases could, after a history of this character, have led to a non-custodial sentence for the offences for which she stood charged on this occasion.
15 His Honour had very little material upon which to assess the subjective features of the Respondent. She gave no evidence. There was a pre-sentence report of limited scope. A number of assertions were made from the bar table.
16 The substance of his Honour's reasons for affording a degree of leniency are set out in his reasons as follows:
"I do however feel that it is appropriate in the present case to come to the conclusion that she was not in real ethical content as criminally liable as the co-offender. It does seem that he was more of a moving party than she. She had been mixing with a number of undesirable associates for some time, and in fact she was anxious to disassociate herself from them and so anxious that she even initially was proposing to move out of an area where she would be eligible for alternatives to full time custody.
The pre-sentence report when her life time history indicates that she is a follower and not a leader, and that she has had a fairly stressed life and from her earliest years when her upbringing was marred by severe emotional deprivation, her later years have been characterised by frequent conflict with undesirable associates. Her own assessment of things extracted by the probation officer who prepared the pre-sentence report is that she has feelings of being trapped and powerless in relationships and that her routine method of extricating herself from a relationship is to go along with illegal activity, thereby getting herself back into gaol where she can sort herself out. That is a combination of the pre-sentence report and what Mr Haesler has put after his conference with her and the probation officer.
She has received a very sympathetic report from the probation officer and the Court places considerable reliance on those without abandoning its own obligations to form an independent view, and once again that comes not only from the pre-sentence report itself which is clearly favourable, but also from the statements of Mr Haesler as to that conference which I mentioned a moment ago and where I accept what he puts. Miss Harrison had to be talked out of simply abandoning herself back into gaol again and encouraged to live in an area where she could be eligible for periodic detention. I observe that Mr Haesler informed her that there was by no means any assurance that that was likely to be the result. But simply he was making her eligible or informing her of ways in which she could be eligible for the alternative.
She has three children aged fourteen, seven and six, and although she has her long history of convictions and custody her instructions to Mr Haesler this time are that she's never been so ashamed of the behaviour that she has recently exhibited when she feels that it is now gravely affecting her two younger children. Again, although that is not given on oath, I am prepared to give recognition to that statement from the bar table when I look at the pre-sentence report. There is also a measure of persuasion coming from her age, an age when the court is accustomed to persons with criminal histories finally wishing to make something out of their lives."