Citation: R v Jessop; R v Woodford [2011] NSWDC 269
Court: District Court of New South Wales
Date: 25 March 2011
Judge(s): Sides QC DCJ
Background
Two offenders, referred to here as Jessop and Woodford, pleaded guilty to three offences arising from an incident at Warwick Farm on 19 September 2009. The charges were: breaking into a home whilst armed and in company with intent to intimidate (Count 1A); and two counts of assault occasioning actual bodily harm in company (Counts 2 and 3).
The offences arose from a domestic dispute. Woodford was the former partner of a woman named Franks, from whom he had separated following a domestic violence incident. At the time of the offences, an apprehended violence order (AVO) was in place prohibiting him from assaulting, molesting, or intimidating her. After making repeated threatening phone calls to Franks on the night in question, Woodford arrived at a neighbour's unit with two other men, one of them Jessop, and one armed with a machete approximately 50 to 60 centimetres long.
The group forced their way into the unit. Woodford pointed a weapon at those present, punched one victim, and confronted Franks at close range while she lay over her infant child to protect him. Two victims sustained injuries to the face, including lacerations and bruising. Jessop participated in the assault but was unarmed and had no prior knowledge of Woodford's background or the AVO.
Legal Issues
- What discount, if any, was appropriate for late guilty pleas entered on the day of trial?
- How should genuine remorse be weighed in sentencing?
- How should the Court distinguish between the roles and moral culpability of the two offenders, given their significantly different involvement?
- How should existing bonds and prior offending history affect the sentences imposed?
- What total sentences and non-parole periods were appropriate, having regard to the objective seriousness of the offences and each offender's personal circumstances?
Decision
The Court noted that both offenders entered their guilty pleas only on the day the trial was due to commence, despite earlier discussions about possible resolutions. Because of the late stage, the Court limited the utilitarian discount for each offender to 10%. However, the Court also found that both offenders had demonstrated genuine remorse, noting in particular that the victims were spared from having to give evidence, and extended separate leniency on that basis in accordance with section 21A(3)(i) of the Crimes (Administration of Sentences) Act 1999.
On objective seriousness, the Court treated the offences as grave. The invasion of a home whilst armed and in company, in breach of an existing AVO, with a baby present, and with victims confronted at close range with weapons, placed the conduct toward the higher end of the range. The Court found that Count 1A attracted a five-year standard non-parole period, which served as a guidepost for sentencing on that count.
The Court drew a clear distinction between the two offenders. Woodford was the instigator: he organised the group, breached the AVO, wielded a weapon, and directed the violence. Jessop, by contrast, was unarmed, had no knowledge of the AVO or the domestic background, and participated at a lower level of culpability. Each offender's personal circumstances, including dysfunctional upbringings, limited education, and prospects for rehabilitation, were taken into account as mitigating factors.
For Woodford, the Court also revoked an existing section 12 bond relating to a prior offence, and that additional sentence was incorporated into the overall sentencing structure. The Court found special circumstances justifying a departure from the standard non-parole period ratio in certain respects, particularly given the need for adequate supervision on release.
Orders Made
Jessop:
- Three years imprisonment with a non-parole period of 15 months, commencing from the date of arrest (3 February 2010).
- Automatic release to parole on 2 May 2011, with parole supervision conditions including good behaviour and oversight by Probation and Parole, continuing for 21 months.
Woodford:
- Existing section 12 bond revoked; eight months imprisonment for that matter commencing 7 October 2009, with a non-parole period of four months.
- Count 1A: non-parole period of 21 months, total term of 45 months, commencing 7 January 2010; eligible for release to parole on 6 October 2011.
- Counts 2 and 3: six months imprisonment commencing 7 January 2010; no non-parole period fixed given the length of the sentence.
- Overall effective sentence of four years imprisonment with a two-year non-parole period commencing 7 October 2009; release to parole not automatic, subject to State Parole Authority hearing.
Key Takeaways
- A late guilty plea entered on the day of trial attracted only a 10% utilitarian discount, reflecting the limited practical utility to the court and justice system by that stage.
- Genuine remorse, evidenced by the fact that victims were spared from giving evidence and by other material before the court, operated as a separate mitigating factor distinct from the guilty plea discount.
- Significantly different roles in a joint criminal enterprise can, and in this case did, produce meaningfully different sentences, even where offenders are charged with identical offences arising from the same incident.
- Breaking into a home whilst armed and in company, in breach of an AVO, with a child present, and with weapons pointed at victims at close range, was treated as conduct of considerable objective seriousness.
- Where an offender's total sentence includes multiple components commencing at different dates, the sentencing court will structure commencement dates carefully to reflect time already spent in custody and to achieve a coherent overall result.
Legislation and Cases Referenced
Legislation:
- Crimes (Administration of Sentences) Act 1999 (NSW), including s 21A(3)(i) (remorse as a mitigating factor) and s 12 (suspended sentences)
Cases:
- Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447
- R v Ponfield (1999) 48 NSWLR 327
- R v Way [2004] NSWCCA 131