R v Steven William SHEARER [2007] NSWDC 18

New South Wales District Court

CITATION: R v Steven William SHEARER [2007] NSWDC 18

HEARING DATE(S): 09/02/2007

JUDGMENT DATE: 9 February 2007

EX TEMPORE JUDGMENT DATE : 9 February 2007

JURISDICTION: Criminal

JUDGMENT OF: Berman SC DCJ

DECISION: See paragraph [12]

CATCHWORDS: Criminal Law - Sentence - Aggravated break enter and steal - Standard Non Parole Period

LEGISLATION CITED: Crimes Act Mental Health Act

PARTIES: The Crown Steven William Shearer

FILE NUMBER(S): 06/11/0964

SOLICITORS: NSW DPP Legal Aid Commission

SENTENCE

1 HIS HONOUR: Steven William Shearer appears for sentence today having pleaded guilty at an early opportunity to an offence of aggravated break enter and steal. The charged circumstance of aggravation relied on by the crown was that the offender was in company with another person, Alexander Parkes. I am to sentence Mr Parkes later next month.

2 However, it is to be noted that the crown could also have relied on other circumstances of aggravation. There were people at home at the time of the offence, it being 8 o'clock in the morning, and under s 105A(2A) of the Crimes Act in those circumstances the offender is deemed to have known that there were people home, unless he is able to prove to me that he could not reasonably have believed that there was there was no-one in the premises. The offender has not given any evidence in this matter but relied on written materials. They are not sufficient in my view to overcome the burden which is imposed upon him.

3 Another circumstance of aggravation the crown could have relied on is that the offender was armed with an offensive weapon. It is here that I have to be careful not to double count because as well as sentencing him for the matter on the indictment I am to take into account an offence of avoiding apprehension by use of an offensive weapon under s 33B of the Crimes Act. Thus if I were to regard the fact that the offender was armed as a circumstance of aggravation for the substantive offence, and then take it into account also in the Form 1 matter, there would be double counting.