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District Court 13 November 2008

R v YOUNG, Nathaniel

[2008] NSWDC 338

Assault & violenceTheft & property
CRIMINAL LAW SENTENCING STANDARD NON PAROLE PERIOD OFFENCE ELDERLY VICTIM MONEY, WATCH AND PHONE TAKEN DAMAGE TO WINDOW OCCURS DURING ESCAPE

Citation: R v YOUNG, Nathaniel [2008] NSWDC 338
Court: District Court of New South Wales
Date: 13 November 2008
Judge(s): Nicholson SC DCJ

Background

The offender, a 25-year-old Aboriginal man, broke into a Hamilton dwelling on the night of 17 March 2006 in search of money to fund drug purchases. He was discovered by the elderly occupant, aged 77, while searching bedside drawers. As he attempted to flee through a bedroom window, he threw punches and falsely claimed to have a gun.

The elderly occupant sustained severe degloving injuries to his forearm, exposing the bones of his left hand, after being caught up in the struggle at the window. His son and daughter-in-law also became involved in the confrontation, and the offender was eventually identified through DNA evidence linking him to items found near the scene. Cash, personal cards, a watch, and a mobile phone were taken, and none of the property was recovered.

The offender pleaded guilty to aggravated break, enter and commit corporal violence. He had a substantial criminal history of break-and-enter offences, had spent much of his adult life in custody, was illiterate and innumerate, had experienced a disrupted childhood with limited family support, and was assessed as carrying a high risk of recidivism associated with drug dependency.

  • What was the appropriate objective assessment of the criminality of the offence, including comparison with the standard non-parole period for the offence type?
  • Whether the standard non-parole period applied, and if not, what sentence was appropriate?
  • Whether special circumstances existed justifying a variation to the statutory ratio between the non-parole period and the balance of term?
  • What discount should apply for the early plea of guilty?
  • How should the offender's Aboriginal background, disadvantaged upbringing, drug dependency, and the absence of drug rehabilitation resources in regional NSW factor into sentencing?
  • How should the principle of totality be applied in light of sentences being served concurrently?

Decision

The sentencing judge assessed the offending as serious. The elderly victim suffered grave physical injury, the false claim of having a gun was an aggravating feature, and the offender's motive was entirely self-interested. The judge also noted significant aggravating factors in the offender's criminal history, including a pattern of break-and-enter offending.

The judge found the standard non-parole period was not an appropriate guide in the circumstances of this case, given the particular features of the offending and the offender's profile. The objective criminality was assessed as sitting below the mid-range for offences of this type, in part because the violence arose during an attempt to escape rather than as a deliberate element of the planned offence.

Special circumstances were found, justifying a longer than statutory balance of term. The primary reason was the offender's substantial rehabilitative needs, including his illiteracy, innumeracy, and entrenched drug dependency, which warranted an extended period of supervision on parole if and when he was released. The judge remarked explicitly on the absence of compulsory drug treatment programs in Newcastle, noting that this denied the offender, and the community, access to a sentencing option that would otherwise have been seriously considered.

The judge applied a 25 percent discount for the early plea of guilty, reducing what would otherwise have been a six-year head sentence to four and a half years. Totality was addressed by backdating the commencement of the sentence.

Orders Made

  • Convicted of aggravated break, enter and commit corporal violence at Hamilton on 17 March 2006
  • Non-parole period of 2 years and 6 months, commencing 29 November 2007, expiring 28 May 2010
  • Balance of term of 2 years, expiring 28 May 2012
  • Total sentence: 4 years and 6 months

Key Takeaways

  • The District Court declined to apply the standard non-parole period as a yardstick where the particular features of the offending and the offender's circumstances placed the case outside the range for which the standard period was designed.
  • Special circumstances were established on the basis of the offender's significant rehabilitative needs, including illiteracy, innumeracy, and drug dependency, warranting a longer supervisory period on parole.
  • An early plea of guilty attracted a 25 percent discount on the head sentence, consistent with the approach in Thomson and Houlton (2000) 49 NSWLR 383.
  • The absence of compulsory drug treatment programs in regional NSW was identified as a structural sentencing disadvantage, affecting both the offender's prospects of rehabilitation and the community's exposure to drug-related reoffending.
  • Aboriginal background and the associated factors of disrupted childhood, limited family support, illiteracy, and time spent in custody were treated as relevant subjective considerations in assessing moral culpability and appropriate sentencing outcomes.

Legislation and Cases Referenced

Legislation:
- Crimes Act (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- R v Gladue (1999) 1 SCR 688
- R v Cuthbert (1967) 2 NSWR 329
- R v Rushby (1977) NSWLR 597
- R v Hayes [1984] 1 NSWLR 740
- R v Ponfield (1999) 48 NSWLR 327
- R v Huynh [2005] NSWCCA 220
- R v Hearne (2007) 124 ACrR 457
- Thomson and Houlton (2000) 49 NSWLR 383