Sentencing for the offence of break, enter and steal is not an arithmetical process of tallying the presence or absence of the aggravating or mitigating features identified in R v Ponfield; it involves a qualitative analysis of the particular facts surrounding the relevant offences, including the effect of particular aggravating features: Pattison v R [2007] NSWCCA 186 citing R v Webster [2005] NSWCCA 110 at [26].

In MacBlane v R [2025] NSWCCA 52, the Court found that the factors identified in the guideline judgment of R v Ponfield (1999) 48 NSWLR 327 for a break, enter and steal offence have largely been overtaken by s 21A Crimes (Sentencing Procedure) Act 1999: [35]; citing Mapp v R [2010] NSWCCA 269 (Simpson J) at [10]. The reduced utility of the guideline stems in part from the risk of double counting. For example, guideline (ii) of R v Ponfield refers to “professional planning” and planning is referred to as an aggravating factor in s 21A(2)(n). The error of double counting aggravating features that are referred to in a guideline judgment and s 21A(2) occurred in the robbery case of R v Street [2005] NSWCCA 139, where Hoeben J said at [35]:

There is nothing to suggest that the approach taken by the Court in R v Street would not be applied to R v Ponfield.

Both the guideline (iii) in R v Ponfield and s 21A(2)(d) refer to an offender’s prior record. However, it is now established that prior offending is to be ignored when assessing the objective seriousness of the crime. It is not an “objective circumstance” for the purposes of the application of the proportionality principle. It is not open for a court to use prior convictions to determine the upper boundary of a proportionate sentence: R v McNaughton at [24]-[25]; [66]-[76]; Veen v The Queen (No 2) (1988) 164 CLR 465; Baumer v The Queen (1988) 166 CLR 51; see also MacBlane v R at [36]. However, prior convictions may be relevant to the determination of whether leniency should be extended: Shaw v R [2008] NSWCCA 58 at [21]; Pattison v R [2007] NSWCCA 186 at [39]. See further Prior record at [10-600].

Similarly, as in guideline (i) and s 21A(2)(j), the fact the offender was on conditional liberty is not relevant to the assessment of objective gravity of the offence: MacBlane v R at [35]; citing Mapp v R (Simpson J) at [11].

Also, the Court in R v King [2003] NSWCCA 352 held that an offence committed after escaping from custody does not fall within the conditional liberty aggravating factor identified in R v Ponfield. However, it is an aggravating factor nonetheless, and one, “in a scale of seriousness”, above the fact of being on conditional liberty at the time of offending: [38]; cited in Flynn v R [2010] NSWCCA 171 at [25]. The Court held that an: “‘offence committed whilst the offender is unlawfully at large’ should notionally be added to the table in Ponfield”: [39].

The court is entitled to take into account elements of planning and organisation as an aggravating factor regardless of whether planning is a common feature of break and enter offences: R v Rich [2007] NSWCCA 193 at [21]. It is impermissible to double count planning in guideline (ii) of the guideline judgment, and planning under s 21A(2)(n). Where the level of planning is not great, the degree of sophistication will determine the weight to be accorded to this factor. In R v Rich, the times of offending and the nature of the items stolen indicated an element of planning for the purposes of s 21A(2)(n), albeit that the offences were carried out ineptly.

Where co-offenders are involved, in determining whether planning and organisation should be taken into account and whethers 21A(2)(n) applies, the court should consider:

Different approaches were taken in R v Cornwall [2007] NSWCCA 359 and Legge v R [2007] NSWCCA 244 to the application of s 21A(2)(n) where co-offenders were involved, and the Court noted in Pham v R [2020] NSWCCA 269 that this should be seen as reflecting a difference in the way s 21A(2)(n) might be applied in different factual contexts: [47].

In R v Cornwall, the Court found it will be of little relevance that an accused person may not have been personally involved in the planning of an offence for s 21A(2)(n) to apply, since the provision is concerned with planning and organisation as a characteristic of the offence, not the offender: [56]. However, in the circumstances of Legge v R, the Court found s 21A(2)(n) was not intended to apply where the offender was not involved in, or part of, the planning and organisation of the offence: [34].

In R v Huynh [2005] NSWCCA 220, the Court held the classification of an offence of break, enter and steal as “towards the mid-range” was not erroneous notwithstanding that larceny only carries a maximum penalty of five years, which is within the bottom of the range of serious indictable offences. The maximum penalty of a serious indictable offence does not of itself determine where the offence lies in the scale of gravity of offences against s 112(2), and the assessment of the objective seriousness is to be made by reference to all the facts and circumstances of the offence and to the range of offences of its kind which come before the court: [27]. In R v Harris [2007] NSWCCA 130 at [29], the Court said of stealing:

In a number of cases where the offence of aggravated break and enter was committed following provocation by the victim (the offender being motivated by a desire for retribution), the Court has assessed the criminality as falling significantly below the mid-range or at the lower end: Lovell v R [2006] NSWCCA 22 at [63]; R v Price [2005] NSWCCA 285 at [23]; R v Millar [2005] NSWCCA 202 at [43]; R v Tory [2006] NSWCCA 18 at [37]; see also R v Ball [2021] NSWCCA 314. The Court held in Lovell v R that the offence fell below the middle range of objective seriousness because the applicants were not motivated by personal gain to acquire property but, rather, by the victim’s lewd conduct towards the applicant’s 15-year-old sister.

When deciding whether to impose a term of full-time imprisonment for an offence under s 112(2), it is permissible to take into account whether “… right minded members of the community would regard the criminality of [the] offence as such that it ought be denounced by a sentence of imprisonment”: Leese v R [2007] NSWCCA 108 at [22].

In relation to offences against s 112(2) and (3), one of the relevant matters in assessing objective seriousness is the number of aggravating features present: Maxwell v R [2007] NSWCCA 304 at [26]. Simpson J said in R v Huynh [2005] NSWCCA 220 at [30]:

In R v Ball [2021] NSWCCA 314 at [49]–[64], the Court discusses the assessment of objective seriousness where a conditional release order without conviction was imposed for a s 112(2) offence involving the infliction of actual bodily harm where the circumstance of aggravation was that the offender knew another person was present in the house.

Where the use of corporal violence is charged as an element of aggravation, the sentence must reflect the difference between this element and the infliction of actual injuries, “lest it be thought that there is no point in limiting the violence used to commit crimes”: Gray v R [2007] NSWCCA 366 at [28]. Although the offences in Gray v R were correctly described as “serious, violent, cruel and callous”, it was an exaggeration to describe them as “extremely” so, where no physical injuries were actually inflicted.

See [63-510] Sentencing approach to domestic violence.

The Queen v De Simoni (1981) 147 CLR 383 is authority for the proposition that a court is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence (see [1-500] De Simoni principle).

R v Knight [2005] NSWCCA 253 is an example of a breach of the De Simoni principle in sentencing for a break, enter and steal offence against s 112(1). The Court held the sentencing judge erred by taking into account as an aggravating factor under s 21A(2)(e) that the offences were committed in company. The offender was not charged with an aggravated form of the offence, which would have attracted a higher penalty. The approach taken was contrary to principles in The Queen v De Simoni (1981) 147 CLR 383 and infringed s 21A(4): [85]–[90].

However, a court may properly take into account circumstances of aggravation (as described in s 105A(1) of the Crimes Act) which are not alleged in the indictment, when sentencing for an offence under s 112(2), (3). In R v Li (unrep, 9/7/97, NSWCCA) the offender was sentenced for an offence of specially aggravated break, enter and rob, being armed with a dangerous weapon. The 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 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. This aspect of the decision in R v Li was followed in Marshall v R [2007] NSWCCA 24 at [10]; MM v R [2016] NSWCCA 235 at [118]; Taufa v R [2020] NSWCCA 264 at [81]–[82].

In Taufa v R, the offender was found not guilty by a jury of a s 112(3) offence involving use of a dangerous weapon, but convicted of the statutory alternative, under s 112(2) which involved being armed with an “offensive weapon”. The judge noted the offender appeared to have a gun, and found he had a “toy gun”. The De Simoni principle precluded a finding the offender carried an imitation pistol, but not that he carried a toy gun: [98].

Pursuant to s 21A(2), the court is not to have additional regard to any statutory aggravating factor if it is an element of the offence. In R v Price [2005] NSWCCA 285, the offender was convicted of aggravated break enter and commit serious indictable offence (assault occasioning actual bodily harm [AOABH]) pursuant to s 112(2). The circumstance of aggravation was that the offender knew that a person was in the dwelling at the time of the offence. The Court held at [28]–[31] that the sentencing judge erred by referring to the use of actual violence under s 21A(2)(b) as an aggravating factor as the use of violence was an element of the offence of AOABH and could not further aggravate the offence. Similarly, in Aslett v R [2006] NSWCCA 49 at [110], the Court held the use of actual violence could not constitute an aggravating factor under s 21A(2)(b), as it was itself an element of robbery, the serious indictable offence charged pursuant to s 112(3).

In R v Baxter [2005] NSWCCA 234, the offender was convicted of a number of offences including break, enter and steal in circumstances of aggravation, namely using corporal violence, under s 112(2). The Court held the sentencing judge erred by taking into account the use of actual violence pursuant to s 21A(2)(b) as an aggravating factor in the offence, as it was already an element of the offence under s 112(2). Reference was also made to the fact that some of the offences committed under s 112(1) were in company, thereby breaching the De Simoni principle: [28]–[32].

In contrast, a court is entitled to take into account, as an aggravating feature under s 21A(2)(eb), the fact the offence was committed in the victim’s home given it is not an element of breaking and entering under s 112(2) that the premises be the home of the victim: Palijan v R [2010] NSWCCA 142 at [21]–[22]; R v Bennett [2014] NSWCCA 197 at [13] (approved in Jonson v R [2016] NSWCCA 286 at [40]–[41], [50]). Such an approach does not amount to impermissible double-counting: BB v R [2017] NSWCCA 189 at [38].