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District Court 25 May 2011

R v Gavin James Edwards aka Gibbs

[2011] NSWDC 222

Assault & violenceTheft & property

Citation: R v Gavin James Edwards aka Gibbs [2011] NSWDC 222
Court: District Court of New South Wales
Date: 25 May 2011
Judge(s): Judge S Norrish QC

Background

The offender, an Aboriginal man, appeared for sentence on two indictment charges and on appeal from three Local Court matters. The Local Court offences involved three separate incidents of breaking, entering and stealing committed in October and November 2008 in Orange while the offender was on parole. He was not detected until some fifteen months after those offences, and by then had been charged while already in custody for a parole revocation.

The indictment offences were more serious. On 18 August 2010, the offender broke into the home of a 64-year-old pensioner and stole $3,000 in cash. Exactly one month later, he returned to the same premises with a co-offender. During that second visit, the co-offender assaulted the elderly victim, constituting a robbery in company. Both indictment offences were committed while the offender was on bail for the Local Court matters.

In each case, the offender left fingerprints at the scene, making detection inevitable. He pleaded guilty to all matters. The court heard evidence about his background, including a difficult upbringing, significant substance abuse, and circumstances relevant to his Aboriginal identity under the principles in R v Fernando.

  • Whether special circumstances existed under the Crimes (Sentencing Procedure) Act 1999 justifying a departure from the standard ratio between non-parole period and head sentence
  • How to structure accumulated sentences across the Local Court appeal matters and the two indictment offences so that the total term was not disproportionate (the totality principle)
  • The appropriate discount for a guilty plea entered on the day of sentencing, in light of the principles in Thomson and Houlton
  • How the Fernando principles bearing on Aboriginal offenders and the role of substance abuse, disadvantage, and prospects for rehabilitation should affect the sentence
  • The correct commencement dates for the various sentences given the offender's complex custody history

Decision

Judge Norrish confirmed the Local Court convictions on appeal and confirmed the eighteen-month sentences imposed by the magistrate, though quashing the non-parole periods and adjusting commencement to 7 October 2010, the date of the offender's arrest. The Local Court sentences ran concurrently with each other and with the Form 1 matter, expiring on 6 April 2012.

For the breaking, entering and stealing on the indictment, the court imposed two years and three months imprisonment, representing a twenty-five per cent discount for the guilty plea. That sentence commenced on 7 July 2011 to reflect partial accumulation over the Local Court sentences. The court structured the accumulation so that the indictment sentences began nine months into the Local Court term rather than wholly concurrently, reflecting that the indictment offences were committed on bail and were more serious.

For the robbery in company, the court imposed a head sentence of three years and four months, with a non-parole period of one year and seven months. That sentence commenced on 7 July 2012. The court found special circumstances in relation to the robbery, principally because of the length of supervision the offender would require upon release, his troubled background, his history of substance abuse, and his Aboriginal identity as addressed in the Fernando principles.

Across all matters, the effective non-parole period was forty months and the balance of sentence was twenty-one months. The court expressly noted that the generous finding of special circumstances would not be available indefinitely if the offender continued to reoffend on parole, and that future courts would not be bound to extend the same consideration.

Orders Made

  • Local Court convictions confirmed on appeal
  • Local Court sentences of eighteen months imprisonment (concurrent, including Form 1 matter) confirmed; commencement date varied to 7 October 2010; expiry 6 April 2012; non-parole periods quashed
  • Breaking, entering and stealing (indictment): two years and three months imprisonment, commencing 7 July 2011, expiring 6 October 2013
  • Robbery in company (indictment): head sentence of three years and four months; non-parole period of one year and seven months commencing 7 July 2012, expiring 6 February 2014; balance of sentence of one year and nine months expiring 6 November 2015
  • Effective non-parole period across all matters: forty months; balance of sentence: twenty-one months

Key Takeaways

  • The District Court applied the Fernando principles to recognise the relevance of the offender's Aboriginal identity, history of disadvantage, and substance abuse when assessing moral culpability and fixing the non-parole period, without treating those factors as excusing the conduct.
  • Special circumstances under the Crimes (Sentencing Procedure) Act 1999 were found primarily on the basis that the length of accumulated sentences and the offender's rehabilitation needs required a longer-than-standard period of supervised parole.
  • A guilty plea entered on the day of sentencing attracted a discount of twenty-five per cent, consistent with the approach in Thomson and Houlton, rather than the higher discounts available for early pleas.
  • Where an offender commits further offences while on bail for earlier charges, partial accumulation of sentences is appropriate to reflect the additional criminality, even where full accumulation would produce a disproportionate total term.
  • The court signalled explicitly that a finding of special circumstances reflects the circumstances of a particular sentencing, and that persistent reoffending on parole would reduce the prospect of future courts extending equivalent leniency.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 97(1), 112(1)(a), 122(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- R v Fernando (1992) 76 A Crim R 58
- Thomson and Houlton (2000) 49 NSWLR 383
- Newman and Simpson [2004] NSWCCA 102
- R v Henry (1999) NSWCCA 111
- Blackburn & Walters [2001] NSWCCA 121
- Cahyadi v Regina [2007] NSWCCA 1
- R v Bloomfield (1998) 101 A Crim R 404
- R v Monteiro [2011] NSWCCA 113
- R v Ponfield (1999) 48 NSWLR 327