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This table is intended to be used as a guide only. Individual cases should be read if they are to be relied upon.

 

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Break and Enter -ss.113(1), 113(2) & 113(3)  

Break and Enter with intent to Steal - Multiple

s.113(1) break and enter with intent to commit serious indictable offences - 10y

Name

Offence

Plea

Sentence at First Instance

Result on Appeal

Summary of Record

Involvement & Summary

Callaghan


(2006) 160 A Crim R 145

2 x BE W/I to steal

PG

2y
NPP 12m

AD

Breached parole

On two separate occasions broke into video store - no property stolen

 
 

Break and Enter with intent to Steal - Single

s.113(1) break and enter with intent to commit serious indictable offences - 10y

Name
Offence
Plea
Sentence at First Instance
Result on Appeal 
Summary of Record 
Facts 

Turner


NSW CCA [260]
30.6.2004

s.113(1)

PG

(20% on appeal)

3y 4m
NPP 2y 6m

AA
3y
NPP 2y 3m

Breached parole

After argument with father broke into home through window - fled when occupant returned

Sharpe
(26)


NSW CCA [217]
22.5.2007

s.113(1)

Sched:
3 offences

PG

3y 6m
NPP 2y

AD

Significant record for BES offences - breached parole for agg BES - offence committed 3 days after release

Broke into garages in home unit complex - offence at lower end of scale of seriousness
Drug and alcohol addiction -difficult childhood

Ha


[2009] NSWCCA 31

s. 113(1)

PG

(15%)

1y 8m
NPP 1y 3m

AD

Number of BE offences. On parole.

Broke into garage of unit with cooffender using crowbar.

Parity argument rejected.

 
 

Aggravated Break and Enter with intent to Commit Serious Indictable Offence (not Steal)

s.113(2) aggravated break and enter with intent to commit serious indictable offences - 14y
s.105A(1) circumstances of aggravation: armed with offensive weapon or instrument; in company; uses corporal violence; maliciously inflicts actual bodily harm; deprives person of liberty; knows there is person(s) in dwelling

Name Offence Plea Sentence at First Instance Result on Appeal Summary of Record Involvement & Summary

Elmir
(33)




Salami
(30)

NSW CCA [192]
2.7.2003

Agg BE with intent to commit AOABH (infliction of corporal violence)
s.59 AOABH

Agg BE with intent to commit AOABH (infliction of corporal violence)
.59 AOABH

PG
(20%)




PG

(20%)

Total:
3y PD
NPP 18m



Total:
2y 6m PD
NPP 12m

Crown AA
2y
NPP 12m



1y 9m
NPP 9m

Lengthy but old





Minor - no violence

Forced way into house and chased occupants - Assaulted male victim over sustained period of time with punches and pool cue - Minor injuries inflicted
Revenge for serious assault on younger brother of Elmir - Elmir principle offender - Remorse

 

 

Aggravated Break and Enter with intent to Steal - Single

s.113(2) aggravated break and enter with intent to commit serious indictable offences - 14ys.
s.105A(1) circumstances of aggravation: armed with offensive weapon or instrument; in company; uses corporal violence; maliciously inflicts actual bodily harm; deprives person of liberty; knows there is person(s) in dwelling
  

Name

OffenceCircumstance of AggravationPleaSentence at First InstanceResult on AppealRecordFacts

Ditfort

(32)

[1999] NSWCCA 442

s.113(2)In companyPG

MT 2y

AT 18m

AA

To vary commencement date

lengthy record - released to parole nine days prior to offence

Broke into shop with two co-offenders armed with cricket bat and piece of timber.  Stole money and cigarettes.

Aboriginal with deprived upbringing; drug addiction

Lord

(18)

[2001] NSWCCA 533

s.113(2)

 

Sched:

AOABH

Not specified

PG

(early plea)

12m GBB  (no conviction recorded)

Crown AA

18m suspended sentence

Nil

Broke into home of 71y female - pushed past victim in attempt to escape - victim fell on tiles injuring herself - Lesser offender

Excellent prospects of rehabilitation – remorse

Rutter

[2003] NSWCCA 306

s.113(2)Not specified

PG

(25%)

6y

NPP 3y

ADNil

Waited in car while co-offender entered house brandishing pistol and impersonating police officer – In telephone contact with co-offender

Also dealt with for drug offences – Psychological disorder

Lenthall

(26)

[2004] NSWCCA 248

s.113(2)

 

Sched:

3 offences

In company

PG

(25%)

5y 3m

NPP 2y 6m

Compensation order

AA

3y 9m

NPP 1y 10m

"appalling"

Ram-raid in stolen car with 2 co-offenders of service station - $10,000 damage to service station

Remorse – good prospects of rehabilitation – parity w co-offenders

Pettersen

(25)

[2009] NSWCCA 91

s.113(2)

Dangerous driving

 

Sched:

Take and drive conveyance

In companyPG

3y 9m

NPP 2y

(6m concurrent)

Crown ADBreached parole – significant record

Driver of car – four co-offenders broke into club and threatened cleaners with gun – attempt made to break into ATM – police car chase followed by attempt to escape by foot – unaware of handgun – unaware people in club

Remorse – Sentences concurrent to revoked parole

Co-offenders Bendt and Fell sentenced for s.113(3)

Haydon

(25)

[2012] NSWCCA 151

s.113(2)

 

Sched:
3 offences

In company

PG

(25%)

2y 6m

NPP 1y 10m

ADBreached parole for similar offences

With co-offender attempted to break into shed and steal motorbikes

Sentence imposed 13m after commencement of sentence for s.112(1) offence

Pettersen

(30)

[2013] NSWCCA 20

s.113(2)

 

Sched:

3 car offences

 

Conspiracy to BES in agg circumstances

In company

PG

(25%)

FT 3y 9m

 

Total: 7y 3m

NPP 4y 3m

ADLengthy record for dishonesty offences – breached paroleAttempted unsuccessfully to break into commercial premises using crowbar - made preparations to break into warehouse but abandoned attempted when alerted to police presence – stole several car to assist attempts

Bamblett

[2013] NSWCCA 161

s.113(2)Premises occupiedPG

4y 6m

NPP 3y 4m

ADLengthy record – breached parole of 10 days for serious offences

SNPP 5 years

Broke into house at night through window of kitchen – entered bedroom with sleeping couple – apprehended in house but fled

Drug addiction

Mitchell M

(19)

 

Mitchell P

(22)

 

[2013] NSWCCA 318

 

Co-offender:
MITCHELL

s.113(2)

 

Sched

Larceny

Carried in conveyance

In company

PG

(25%)

2y 3m

NPP 1y 3m

AA

9m

NPP 6m

Each: Children Court matters dealt with by fines, probation. 

Brothers - offenders at night walking past the premises of an audio-electronics business - seeing a vehicle parked in the yard the offenders entered the yard, started the vehicle and drove away – later returned and entered the premises to steal tools and music equipment .

"at the lower end of the range" of objective seriousness.

Manifestly excessive – young adult offenders - No previous custody.

Mitchell

(40)

[2014] NSWCCA 63

 

Co-offenders:
MITCHELL
MITCHELL

s.113(2)

 

Sched:

Larceny

Take and drive a conveyance

In company

PG

(25%)

3y

NPP 2y

AA

1y 10m

NPP 1y

Lengthy record

Brothers - walking past premises of audio-electronics business at night - entered yard and drove away with car – later returned and entered the premises to steal tools and music equipment - lower end of the range

Senior offender

Huynh

[2015] NSWCCA 179

s.113(2)

 

Sched:

Resist arrest

Assault police

In company

PG

(25%)

4y 10m

NPP 3y 8m

AA

4y

NPP 3y

lengthy

With co-offender broke into house – ransacked bedroom while co-offender struggled with resident and held knife to neck

Difficult childhood – early drug addiction – chronic depression

 

 

Specially Aggravated Break and Enter with intent to Steal - Single

s.113(3) specially aggravated break and enter with intent to commit serious indictable offences - 20y
s.105A(2) circumstances of special aggravation: wounds or maliciously inflicts GBH; armed with dangerous weapon

Name
Offence
Circumstance of Aggravation
Plea
Sentence at
First Instance
Result on Appeal
Record
Facts

Guthrie
(27)


NSW CCA [77]
21.3.2002

s.113(3)

Sched:
Possess unauth firearm

Armed with dangerous weapon

PG (just under 20% on appeal)

4y 6m
NPP 3y

Crown AA
6y 6m
NPP 4y 6m

Lengthy record including firearms

Attempted to use altered truck to remove ATM with co-offender- Arrested after struggle where offender produced gun - Instigator - Carefully planned offence - Major criminal activity

Newman
(23)

Simpson
(female)
(22)

NSW CCA [102]
19.4.2004

s.113(3)


s.113(3)

Wounding

PG 20%




PG
20%

8y
NPP 5y

5y 6m
NPP 3y

AD


AD

Significant record

Minor record for violence - breached bond

Female attended home of male acquaintance at night - Obtained entry by pretending to seek spiritual counselling - Complainant assaulted by two male co-offenders and threatened with knife
KS - 2 young children

Bendt
(20)





Fell

(30)

NSW CCA [91]
6.4.2009

s.113(3)

Sched:
Take and drive conveyance


s.113(3)

Sched:
Take and drive conveyance

In company
Armed with dangerous weapon

PG 20%



 



PG (not stated)

 

 

5y 3m
NPP 3y
(recommendation for referral to Drug Court)



5y 3m
NPP 3y

Crown AA
5y 9m
NPP 3y 3m



Crown AA
5y 9m
NPP 3y 3m

Breached parole - lengthy record



Breached parole -lengthy record

Four offenders broke into club and threatened cleaners with gun - B smashed glass door to enter - attempt made to break into ATM with concrete saw - F took possession of gun - police car chase followed by attempt to escape by foot
Remorse
Driver of car Petersen sentenced for s.113(2)

Smith
(27)

 

NSW CCA [209]

9.9.2011

s.113(3)

 

Sched:
Assault

Wounding

PG (15%)

6y 9m NPP 5y

AA
4y 3m
NPP 3y

Drugs, dishonesty

A’s mother had been receiving intimidating and harassing phone calls from N – A went with his mother and brother to N’s house – A took with him a piece of timber – A assaulted the wrong person, V, with the timber – V suffered injury to his forehead and body.

Alcohol and anger management issues.

SJ did not give adequate weight to provocation by N and motive – not a “mid-range” offence – manifestly excessive sentence

 

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