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District Court 23 October 2014

R v Emerson

[2014] NSWDC 326

Assault & violenceTheft & propertyPublic order & justice offences
CRIMINAL LAW SENTENCE ARMED HOME INVASION MOTIVATION GRAVITY OF OFFENCE TERRIFYING EXPERIENCE FOR VICTIM

Citation: R v Emerson [2014] NSWDC 326
Court: District Court of New South Wales
Date: 23 October 2014
Judge(s): Cogswell SC DCJ

Background

The offender, a 45-year-old man, learned on the evening of 30 November 2013 that his daughter had been assaulted and had sustained significant injuries. He and his partner took her to hospital, then returned home. After consuming further alcohol, he obtained information purporting to identify those responsible and set out to confront them.

Over the course of that night and into the early hours of 1 December 2013, the offender visited a residential unit in Lavington on four separate occasions. On his third and fourth visits, a woman had returned to the unit. He forced open the front door while holding a knife, threatened her, and demanded to know who lived there. When police intercepted him shortly after, he returned a blood alcohol reading of 0.16 (high range). He subsequently admitted he did not know the identity of the person who had actually assaulted his daughter and that the victim did not match the description he had been given.

The offender pleaded guilty to one count of aggravated break and enter and commit serious indictable offence under s 112(2) of the Crimes Act 1900, with three further offences (break and enter and steal, a second aggravated break and enter, and destroying and damaging property) taken into account on a Form 1.

  • What was the appropriate overall sentence for the principal offence, having regard to its objective seriousness, the offender's subjective circumstances, and the Form 1 matters?
  • What discount applied for the early guilty plea?
  • Whether special circumstances justified reducing the non-parole period below the standard 75% ratio?

Decision

Cogswell SC DCJ assessed the objective seriousness of the offence as just below the middle of the range. The offence involved a knife-wielding intruder entering a woman's home in the early hours of the morning, returning multiple times, and confronting the victim directly. The judge noted that Parliament has treated such offences gravely, reflected in the 20-year maximum and five-year standard non-parole period. The victim's home was expressly identified as an aggravating feature under the relevant legislative provisions.

The offender's extensive criminal history, which included prior terms of imprisonment for similar offences dating back to 1988, attracted significant weight on specific deterrence and community protection. His Honour gave limited weight to a troubled upbringing, noting that prior sentencing courts would already have considered that factor. In mitigation, the offender was well supported by his partner and family, had maintained stable employment in the years since his last release from custody in 2007, held a trusted position in employment while in custody, and had pleaded guilty at the earliest opportunity.

His Honour set a starting sentence of six and a half years. A 25% discount was applied for the early guilty plea, producing an overall sentence of four and a half years imprisonment.

Special circumstances were found to exist, justifying a reduction in the non-parole period to 55% of the head sentence rather than the ordinary 75%. The reasons included the need for an extended period of supervised parole on release, the offender's acceptance of responsibility, and his reasonable (though not good) prospects of rehabilitation.

Orders Made

  • Total sentence of four years and six months imprisonment, commencing 1 December 2013 and expiring 31 May 2018.
  • Non-parole period of two years and six months, commencing 1 December 2013 and expiring 31 May 2016.
  • Balance of term of two years, commencing 1 June 2016 and expiring 31 May 2018.
  • Three offences (break and enter and steal, aggravated break and enter, and destroying and damaging property) taken into account on a Form 1.

Key Takeaways

  • The District Court confirmed that where multiple offences are taken into account on a Form 1, this must be reflected in an increase to the sentence imposed for the principal offence.
  • A revenge motive, while understandable in a human sense, did not reduce the objective gravity of an armed home invasion and provided no material mitigation.
  • Special circumstances justifying a departure from the standard non-parole period ratio were established where extended post-release supervision was considered necessary given a lengthy record and the nature of the offending.
  • An early guilty plea attracted the full 25% discount available, consistent with the offender's admissions to police from the outset and his acceptance of responsibility.
  • Limited weight attaches to a difficult upbringing where the offender is middle-aged and prior courts can be taken to have already considered that factor in earlier sentencing exercises.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(2) (aggravated break and enter and commit serious indictable offence; maximum 20 years imprisonment, standard non-parole period five years)

Cases:
- No specific cases were cited in the portions of the judgment provided. His Honour referred generally to the principle established by the Court of Criminal Appeal that Form 1 offences must be reflected in an increase to the principal sentence.