Citation: Regina v Bradley Reginald White [2008] NSWDC 203
Court: District Court of New South Wales
Date: 7 February 2008
Judge(s): Cogswell SC DCJ
Background
The offender, Bradley Reginald White, was sentenced for aggravated break and enter with commission of a serious indictable offence, namely assault occasioning actual bodily harm, contrary to s 112(2) of the Crimes Act 1900. The offence occurred on 27 March 2007 at a unit in Moruya, where White and a companion had been drinking heavily and consuming drugs including ecstasy.
White wrongly believed a man named Joe Innes was inside the unit. The actual occupant was a 59-year-old disability pensioner, Mary Pike, who was alone. When she locked herself inside and called triple-0, White kicked in the door and entered armed with a length of timber approximately two feet long. He struck Ms Pike twice, once on the left hand and once on the face and jaw, before his companion intervened and removed the timber.
White then picked up the telephone and wrapped the cord around Ms Pike's neck four times before his companion again intervened and both men left. White was not arrested until 11 July 2007, approximately three and a half months after the offence.
Legal Issues
- Where the offence fell on the spectrum of objective seriousness relative to the standard non-parole period of five years under the Crimes Act 1900
- Whether the use of corporal violence constituted a separate aggravating factor given that the pleaded aggravation was inflicting actual bodily harm (and whether to count both would amount to double-counting)
- What weight to give the offender's criminal history, drug and alcohol use, and subjective circumstances, including a guilty plea and expressions of remorse
Decision
Cogswell SC DCJ identified the maximum penalty for the offence as 20 years imprisonment, with a legislatively fixed standard non-parole period of five years. The central sentencing task was assessing the objective seriousness of the offence relative to that standard.
The court identified several aggravating features: the victim was a 59-year-old woman alone in her own home; she had locked her door, which was then kicked in; two offensive weapons were used sequentially; White stopped only when his companion intervened on both occasions; and the attack continued after White was disarmed. Against those factors, the court noted that the injuries, though significant, did not include broken bones, and that the offence was not premeditated and occurred over a short period.
On the double-counting question, the court declined to treat the use of corporal violence as a separate aggravating circumstance. Since the pleaded aggravation was inflicting actual bodily harm, treating the associated violence as an additional aggravating factor would effectively count the same conduct twice. The court noted an apparent difference of opinion between judges of the Court of Criminal Appeal on this point but resolved it against double-counting in this instance.
The court ultimately found the offence fell below the midpoint of the range of objective seriousness, although it remained a serious offence. The offender's extensive criminal record and the fact that he was on conditional liberty at the time of the offence were treated as significant aggravating factors. Some weight was given to his guilty plea, expressions of remorse, the impact of his father's death on his drug use, and supporting character references.
Orders Made
- Sentenced to four years imprisonment with a non-parole period of three years, commencing 11 July 2007 and expiring 10 July 2010
- Balance of term of one year, running from 11 July 2010 to 10 July 2011
- No finding of special circumstances to justify extending the balance of term
- Two backup offences of assault occasioning actual bodily harm and malicious damage dismissed under the Criminal Procedure Act 1986
Key Takeaways
- The District Court assessed the offence as falling below the midpoint of objective seriousness, primarily because the injuries did not include broken bones and the offence was not premeditated, consistent with Court of Criminal Appeal authorities including Regina v Millar and Regina v Price.
- Where the pleaded aggravation for a charge under s 112(2) is the infliction of actual bodily harm, treating the use of corporal violence as a separate aggravating circumstance risks double-counting the same conduct, and the court declined to do so.
- A standard non-parole period of five years under the Crimes Act 1900 sets the legislative benchmark for this offence, but departure below that benchmark is appropriate where objective seriousness is assessed as below the midpoint.
- An offender's extensive criminal record and status on conditional liberty at the time of the offence remain significant factors that weigh against a reduction in sentence even where mitigating circumstances are present.
- The decision to end the violence resting with a third party rather than with the offender was treated as a relevant consideration in assessing moral culpability.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 59, 105A(1)(d), 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Criminal Procedure Act 1986 (NSW)
Cases:
- Regina v Maxwell [2007] NSWCCA 304
- Regina v Millar [2005] NSWCCA 202
- Regina v Price [2005] NSWCCA 285