1. By Nikki Barolsky and Ienash Rasheed BREAK AND ENTER OFFENCES

2. THE DE SIMONI PRINCIPLE. “ No one should be punished for an offence of which he or she has not been committed.” ” The principle that a sentencer cannot take into account as an aggravating factor a circumstance that would warrant conviction for a more serious offense “ A court may properly take into account circumstances of aggravation which are not alleged in the indictment, when sentencing for an offence under s 112(3). Example: In R v Li the offender was sentenced for an offence of specially aggravated break, enter and rob, being armed with a dangerous weapon. The sentencing judge took into account other circumstances of aggravation, including that the accused was in company and deprived the victim of his liberty. The court held that this was permissible as these circumstances of aggravation grounded a less serious offence, namely one under s 112(2), than that for which the offender was being sentenced. The De Simoni principle was therefore not applicable.

3. SECTION 21A – BREAK AND ENTER OFFENCES Section 21A(2) Crimes Act 1999 sets out aggravating features which are to be considered “in addition to any other matters that are required or permitted to be taken into account by the court under any act or rule of law. Where the criminal conduct involved in a break and enter offence overlaps with conduct for which the offender has already been punished in relation to another offence, an appropriate credit for the time served should be granted. Example: In R v Stewart [2005] NSWCCA 290 the applicant was sentenced for an offence of break, enter and steal under s 112(1). Several of the items stolen (watches) were also the subject of a charge of goods in custody, for which a period of imprisonment had already been served. The court held at [26] that, because the conduct involved in the earlier offence was necessarily a direct result and part of the conduct involved in the later offence, the sentencing judge should have allowed a credit for the time already served. His Honour’s failure to do so resulted in the respondent being effectively punished twice for the same offence or for the overlapping criminal conductt.

4. Part 4, Div 1, Subdivision 4 Crimes Act 1900 (NSW) (“the Act”) contains a number of break and enter offences. Break out of a dwelling-house after committing, or enter with intent to commit, an indictable offence (maximum 14 years) Being a c Break, enter and assault with intent to murder (maximum 5 years) Convicted offender armed with intent to commit an indictable offence (maximum 10 years) Aggravated forms of offences come along with corresponding greater maximum penalties.

5. BREAK, ENTER AND COMMIT SERIOUS INDICTABLE OFFENCE A 112(1): The seriousness of the “serious indictable offence” is a matter that is considered on sentencing. It also depends on “all the facts and circumstances of the offence.. and the range of offences of its kind which come before the court. New South Wales retains the highest full-time imprisonment rate for break and enter/burglary offences (77%) General deterrence is a particularly important sentencing consideration for break and enter offences.

6. GUIDELINES If more than one factor is present there is accumulative effect upon seriousness and the need for appropriate reflection. The offence is committed whilst the offender is at conditional liberty on bail or on parole The offence is the result of professional planning, organizing and execution. The offence is accompanied by vandalism and by any other significant damage to property. The offence is committed in a series of repeat incursions into the same premise Courts give appropriate weigh to matters in mitigation as manifest in the particular case. They will include: Evidence of genuine regret and remorse Any rehabilitative steps taken by the offender Addiction to drugs and alcohol is a relevant circumstance for the court to consider it is not of itself a mitigation factor.

7. The prior record qualification Prior offending is to be ignored when assessing the objective seriousness of the crime It is not an “objective circumstance” for the purpose of the application of the proportionality principle. However, prior convictions may be relevant to the determination of whether leniency should be extended. Guideline should not be applied arithmetically Court stated “.. the reliance upon the guideline judgment in Ponfield is misconceived. Sentencing in relation to these kinds of offences does not involve simply adding up aggravating features. It involves a qualitative analysis of the particular facts surrounding the relevant offences, which includes the part played by particular aggravating features..”

8. SUMMARY DISPOSAL An offence under s 112(1) is to be dealth with summarily by a Local Court, except Where the prosecutor or the person charged elects to have the matter dealt with on indictment Where the value of the property exceeds $15 000 Vast majority of break, enter and steal offences are dealt within the local court or children’s court.

9. Aggravated break, enter and commit serious indictable offence Section 112(2) provides for a more serious offence where a person commits an offence under s112(1) in circumstances of aggravation. Circumstances of aggravation include: The alleged offender is armed with an offensive weapon, or instrument The alleged offender is in the company of another person or persons The alleged offender maliciously inflicts actual bodily harm on any person A standard non-parole period of five years Specially aggravated break, enter and commit serious indictable offence Section 112(3) provides for an offence of greater seriousness in circumstances of special aggravation The alleged offender wounds or maliciously inflicts grievous bodily harm on any person The alleged offender is armed with a dangerous weapon A standard non-parole period of seven years

10. In Testalamuta v R [2007] NSWCCA 258, the applicant pleaded guilty to breaking and entering a house, knowing a person was inside, and using a gun therein to intimidate a person who was to be called as a witness in judicial proceedings. The court found no error in the sentencing judge’s finding that the offence was in the upper range of seriousness. The court held at [38] that the serious indictable offence in this case (threatening a witness with intent to influence) was of “particular gravity”, and that it therefore justified an increment of approximately 50 per cent on the standard non-parole period.