//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2012] NSWDC 276
plaintiff. The offender was sentenced to an overall term of imprisonment comprising a non-parole period of two years and a head sentence of four years, with the individual terms and commencement dates as...
No linked legislation citations have been extracted yet.
The judge sentenced Togher for entering an occupied home, stealing property, taking two cars, using the victim's bank card and related offending. The judge considered the fact that Togher knew people were inside the home a serious aggravating feature. The judgment also discussed his longstanding drug addiction, repeated imprisonment and some signs of progress and potential rehabilitation. Those considerations did not displace the need for a substantial prison sentence. The judge found special circumstances because a longer period of parole supervision might help Togher stop offending. The overall sentence was four years, with a two-year non-parole period.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,020 words · generated 28/09/2026
In R v Togher [2012] NSWDC 276, Berman SC DCJ sentenced Hamish Patrick Togher in the District Court of New South Wales on 6 December 2012. This is a sentencing decision. The judgment does not record an appeal or set out a contest about guilt. Its focus is the offender's history, the circumstances of the offending, relevant sentencing considerations and the sentence imposed.
The judge described Togher as twenty-nine and noted that he had spent much of his adult life in custody. In the eleven years after he turned eighteen, his longest period out of gaol had been fourteen months ([1]–[2]). The judgment recounts that he left home at fourteen after difficulties in his relationship with his stepmother and began living on the streets ([2]).
Togher had made progress during an earlier period in custody and in the community. He was on work release, attended TAFE, moved to Beechworth in Victoria to live with his mother, and worked as a chef ([3]–[4]). He later returned to Sydney intending to attend a music festival, resumed using drugs and began living on the streets again. The judge connected the offending to his drug addiction ([4], [8]).
The principal offence involved entering a home through an unlocked laundry window while a woman was asleep inside. Togher moved through the house and entered several unoccupied bedrooms. He stole a laptop, an iPad and the woman's handbag ([5]). He then drove two cars from the garage and used the victim's ANZ Visa card to make purchases at a shopping centre ([6]). The judgment says that one take-and-drive offence required a separate sentence and that another appeared on a Form 1 ([6]).
At the time, Togher was subject to a section 9 bond with a condition prohibiting him from going within one kilometre of Kings Cross railway station. Police saw him in the restricted area, approached and arrested him. He struggled during the arrest, then calmed down. He told police that he had hidden car keys in his underpants, and police later found the cars and material implicating him ([7]).
The court imposed fixed terms for dishonestly obtaining money by deception and taking and driving a conveyance without consent. For aggravated entry, it took the Form 1 matters into account. The overall sentence was four years' imprisonment, with a non-parole period of two years ([12]).
The judge treated the entry into a home while its occupant was inside as a significant feature. The judgment expressly identifies the circumstance of aggravation as Togher's knowledge that people were inside, describing it as “one of the more serious forms of aggravation” ([9]). The judge also recorded that the underlying serious indictable offence was stealing, which was described as one of the less serious forms of indictable offence covered by the relevant section ([9]). The decision therefore recognises both the gravity of entering an occupied home and the nature of the offence intended or committed inside.
The woman was asleep and did not wake during the entry. The judge nevertheless considered it clear that she had been significantly harmed by the offence ([5]). The reasoning does not make physical injury or the victim waking a condition of recognising harm. It focuses on the intrusion into her home and the circumstances of the offending.
The sentencing remarks also address Togher's drug addiction and background. The judge said that he committed the offences because of his addiction and recounted his return to heroin use after a period of work and study ([4], [8]). The judgment notes prior participation in a compulsory drug treatment programme, difficulty maintaining abstinence even in custody, his later methadone programme at Bathurst, and his hope of residential rehabilitation ([10]). The judge saw “a great deal of hope for the future” but did not describe his rehabilitation prospects as good ([10]).
Those personal circumstances did not lead the court to avoid imprisonment. The judge said that a significant period of imprisonment was necessary to reflect the significance of the offences, particularly the aggravated entry offence, which carried a maximum penalty of fourteen years ([10]). That statement is a sentencing rationale in this case, not a general formula setting a sentence for all similar conduct.
The court made a finding of special circumstances. Its stated main reason was that an extended period of parole supervision could improve the prospect that Togher would stop offending. The judge linked that prospect to preventing future victims and benefiting the community ([11]). The judgment thus presents parole supervision as serving a rehabilitative and protective purpose in the circumstances of this offender.
The judge also commented on work release and public criticism of prisoner release programmes ([3]–[4]). The judge considered that preparation for life outside prison can help avoid the shock of release and the risk of rapid reoffending. However, the judge expressly said that Togher's further offending was not due to a failure of the work release programme ([4]). These comments form part of the judge's explanation of the offender's history and views about rehabilitation; the judgment does not decide a legal challenge to the programme.
The judgment does not provide a survey of earlier authorities, cite cases, or set out a general doctrinal test for sentencing. It should therefore be read as a record of the sentencing reasoning and orders in this particular case, rather than as a comprehensive statement of the law before or after the decision.
The legal information stated directly in the judgment includes the judge's identification of the aggravating circumstance, namely that Togher knew people were inside the home, and the stated maximum penalty of fourteen years for the aggravated entry offence ([9]–[10]). The judgment also records how the sentencing court dealt with multiple offences and Form 1 matters: separate fixed terms were imposed for two offences, while Form 1 matters were taken into account in sentencing for aggravated entry ([6], [12]).
The court's finding of special circumstances is explained by reference to the facts and the judge's assessment of the potential value of extended parole supervision ([11]). The judgment does not identify a statutory test for special circumstances, cite an authority on the subject, or explain the broader legal consequences of such a finding. Its reasoning is therefore evidence of how this judge approached the issue on this record, not a complete account of the governing legal framework.
The decision also does not say that it changed, created or overruled any rule. No precedent relationships are identified in the supplied judgment text. Any claim about how the decision altered the law, or about the law applicable today, would require legal sources beyond this judgment.
At [5], the judge says, “I have got no doubt at all that she has been significantly harmed by the offence that he committed,” even though the woman slept through the entry. In plain English, the court regarded the intrusion and theft as significantly harmful to the victim without requiring her to have witnessed the offending at the time.
At [9], the judge says that the aggravating circumstance was that Togher “knew there were people inside”. The judge calls that one of the more serious forms of aggravation. In plain English, the court considered the risk and intrusion associated with knowingly entering an occupied home a substantial feature of the offence.
At [10], the judge says that there “must be a significant period of imprisonment” to reflect the seriousness of the offences, especially aggravated entry. This is the court's explanation for imposing imprisonment despite acknowledging the offender's addiction and possible rehabilitation prospects.
At [11], the judge explains that an extended parole supervision period could make it more likely that Togher would stop offending, meaning fewer future victims. In plain English, the court treated supervision after release as part of a forward-looking effort to reduce further offending.
At [12], the judge states the component sentences and the overall result. The overall sentence was a non-parole period of two years and a head sentence of four years. The judgment also states that the non-parole period would expire on 20 March 2014, when Togher would be eligible to be released to parole. Eligibility is not the same thing as a statement that release would necessarily occur on that date.
The judgment is most directly relevant as an example of sentencing reasoning where an offender enters a home knowing people are inside, steals property, and commits associated offences involving vehicles or payment cards. Its factual emphasis is the combination of residential intrusion, an occupant asleep inside, theft, and the use of property found in the victim's handbag ([5]–[6], [9]).
It may also be relevant to analysis of sentencing where drug addiction is said to be connected to offending, where the offender has a lengthy custody history, and where there is some evidence of progress in work, education or treatment ([2]–[4], [10]). The judgment shows that those matters were discussed and weighed, but it does not establish that they will have the same significance in another case.
The special-circumstances reasoning may be relevant where extended parole supervision is argued to support rehabilitation and public protection. Here, the judge linked supervision to the prospect of stopping reoffending and preventing future victims ([11]). The decision does not state that this reasoning automatically establishes special circumstances in other cases. Differences in offence seriousness, personal history, treatment prospects and the available evidence may matter.
The Form 1 treatment may be of interest where multiple offences are sentenced together. The judgment distinguishes the offence for which a separate sentence was imposed from an offence placed on a Form 1 and says the Form 1 matters were taken into account in sentencing for aggravated entry ([6], [12]). The decision does not provide a detailed explanation of the governing rules for Form 1 matters.
The supplied judgment contains no citations to later decisions, and the material provided includes no subsequent case history. It is therefore not possible, on this source alone, to say whether later courts have followed, distinguished, applied or criticised R v Togher.
The decision is a District Court sentencing judgment. The text records Berman SC DCJ's reasons and sentence, but does not claim that the court was deciding a novel point of law or laying down a general sentencing rule. Any account of later treatment would need to be checked against later judgments and reliable case-law research sources. No such sources are included here, so no further claim about its authority or subsequent treatment can be grounded in the supplied material.
The judgment does not set out the statutory provisions in full or cite authorities on aggravated entry, Form 1 matters, special circumstances or parole. It identifies a maximum penalty of fourteen years for the aggravated entry offence but does not provide the section number or explain the complete statutory elements ([10]). Those details cannot be reconstructed from this text alone.
The sentencing remarks also do not explain the arithmetic or legal mechanism by which the individual terms combined into the overall sentence. The judge specifies separate starting dates, gives a sentence for aggravated entry taking Form 1 matters into account, and then states the overall four-year head sentence and two-year non-parole period ([12]). The text does not provide a fuller account of how each component operated in the aggregate.
The decision does not state what information about treatment, release planning or parole supervision was available beyond the matters described. Nor does it explain whether any particular supervision conditions were proposed. The judge's reasons establish the importance attributed to extended supervision in the special-circumstances finding, but leave those practical details unstated ([10]–[11]).
Finally, this judgment alone does not show how comparable cases were sentenced, how later courts interpreted the reasoning, or what the current legal position is. Those questions require sources beyond the supplied decision.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.
SENTENCE 1HIS HONOUR: Hamish Togher is now twenty-nine, and once again he is in gaol. He has been in gaol so much that really he does not regard it as punishment anymore. In fact I rather get the impression that he finds it sometimes more comfortable living in gaol than he does living in the community. But for a relatively brief period recently he was achieving something with his life and doing things that he was proud of. Sometime in the future, and I hope it is soon, Mr Togher is going to realise the futility of living his life in gaol and yearn for a life outside gaol, a life where he can once again achieve things and be proud of them. 2His criminal offending began when he was living on the streets in these circumstances: His parents separated when he was quite young. He lived with his father who brought him up and things were going well until his father remarried. This occurred when the offender was fourteen. He explained that he was becoming a teenager, going through puberty at a time when a new person began competing for his father's affection. In those circumstances he just did not get on with his stepmother and left home and began to live on the streets. Since then he has spent a great deal of time in custody and in fact in the last eleven years, since he turned eighteen, the longest time he has been out of gaol is fourteen months. 3When he was last in gaol things were progressing reasonably well. He was on work release, an opportunity that allows prisoners to become rehabilitated. Work release being the subject of some criticism by, what I will describe, the law and order brigade. They seem to think that the best thing that can happen is that a prisoner spends the entirety of their custodial sentence in prison, deprived of amenities and deprived of the ability to see what life is like outside gaol. Prisoners in that position are usually released and the shock of having to deal with life outside gaol, completely unprepared for it, often leads to the offender committing further offences in short order and going back to gaol. The law and order brigade would say well that is where the person belongs. What they fail to take account of is that such policies lead to more offending and thus more victims of crime. 4The fact that the offender has committed a further offence for which he must now be sentenced is not due to any failure of the work release programme. Things were going well, and he was working well. He then went to TAFE and eventually ended up living with his mother in Beechworth in Victoria where he worked as a chef at a pub, doing what he described as up market pub food. He has had an addiction to drugs for many years and the potential for relapse was always there. He came to Sydney intending to go to a music festival but it was not very long before he was back to his old ways, meeting his old friends and using drugs as he had been. He never actually got to go to the music festival. Instead he began once again living on the streets and using drugs of various amounts, spending everything he could get on heroin. It was in these circumstances that he committed this most serious offence that I have to sentence him for. 5One night he left the Woolloomooloo area where he was living under a bridge and walked to the Eastern Suburbs. He found a home where a laundry window had been left unlocked. Inside was a woman. She was apparently alone, her husband being away on business. It is very fortunate that she did not awake during what I am about to describe. But nevertheless, even though she slept through everything that occurred when Mr Togher was inside the house, I have got no doubt at all that she has been significantly harmed by the offence that he committed. She was asleep when the offender crawled into the home through the open laundry window. He then went through the house and went into a number of bedrooms, fortunately all of them unoccupied. He stole what he could, a laptop computer, an iPad and the victim's handbag. Inside that handbag were a number of items which Mr Togher then used to commit further offences. 6There were two cars parked in the garage, the offender drove both of them away. How he managed to get both of those away as well as a road bicycle is difficult to understand but he managed. One of the offences of taking and driving a conveyance is a matter for which the offender must be specifically sentenced and the other appears on a Form 1. Then using property that was in the victim's handbag he went to a shopping centre and made some purchases with the ANZ visa card that was contained in the victim's handbag. That is an offence of dishonestly obtaining property by deception of which the offender must also be separately sentenced. 7At the time he committed these offences he was subject to a s 9 bond and a condition of that bond was that he not go within one kilometre of Kings Cross railway station. He was seen in that area in clear violation of the place restriction order. Police then approached the offender and told him that they thought he had committed the aggravated enter with intent to commit a serious indictable offence and they arrested him. Whilst he was under arrest he began to struggle, requiring the officers to handcuff him. When they did he finally managed to calm down. He explained to police that he had to give it a go and also told them that they had not found car keys that he had hidden in his underpants. Police subsequently found the two motor vehicles that the offender had driven out of the home in separate car parks and inside those vehicles a great deal of material was found which implicated the offender. 8The offender is a person who committed these offences because of his addiction to drugs. He gave evidence before me and , if I can say so without being condescending, he appeared to be quite a clever person who was well aware of the position that he now finds himself in. He seems able to analyse with a clear head how it is that he has ended up where he is and the effect of custody upon him. As I began these remarks on sentence gaol really does not hold any great fears for him and he finds it comfortable. There will be a time when he understands that he has got one life to live and living it the way he has been is a waste of time, a waste of the one life that he has. 9The circumstance of aggravation of this offence is that the offender knew there were people inside. That is one of the more serious forms of aggravation of the offence. On the other hand the serious indictable offence he committed was stealing, one of the less serious forms of indictable offence that are covered by the section. 10He has previously been on the compulsory drug treatment programme but even whilst on that programme in custody he found it difficult to put his drug use completely behind him and was detected with dirty urine whilst in gaol. This time however he is now at Bathurst and on the methadone programme. He does hope in the future to undergo some residential rehabilitation which will assist him put his drug using ways behind him for good. He has been able to achieve a lot in the brief period that he has been released from custody in the past. So whilst I cannot say the offender's prospects of rehabilitation are good there is a great deal of hope for the future as far as Mr Togher is concerned. Nevertheless there must be a significant period of imprisonment imposed upon him in order to reflect the significance of the offences he has committed, in particular the aggravated enter with intent to commit serious indictable offence which carries a maximum penalty of fourteen years and which is a matter of great concern to the community as well as the individual victims of offences of that type. 11I will make a finding of special circumstances in the offender's favour, they relate of course to the need for there to be some accumulation of the sentences but primarily they relate to the circumstance that if the offender is given an extended period of supervision upon parole there is much more of a chance that he will be able to give up his offending ways, which will have the effect that the community benefits. If he commits no further offences there will be no further victims and the community and its members are thus much better off. 12I will impose sentences as follows. For the offence of dishonestly obtaining money by deception I impose a fixed term of imprisonment of twelve months, to date from 21 March 2012, the day on which the offender went into custody. For the offence of take and drive conveyance without consent, of course not the one on the Form 1, the offender is sentenced to a fixed term of imprisonment of twelve months, to date from 21 June 2012. And then taking into account the matters on the Form 1 for the offence of aggravated enter with intent to commit a serious indictable offence the offender is sentenced to a non-parole period of eighteen months, to date from 21 September 2012 and a head sentence of three and a half years. The non-parole period will thus expire on 20 March 2014 on which day the offender is eligible to be released to parole. The overall sentence one of imprisonment, consisting of a non-parole period of two years with a head sentence of four years.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 April 2013
R
Togher
The offender was sentenced to an overall term of imprisonment comprising a non-parole period of two years and a head sentence of four years, with the individual terms and commencement dates as stated.