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District Court 12 August 2014

R v Higgins; R v Higgins

[2014] NSWDC 356

Assault & violenceTheft & propertyPublic order & justice offences
CRIMINAL

Citation: R v Higgins; R v Higgins [2014] NSWDC 356
Court: District Court of New South Wales
Date: 12 August 2014
Judge: Judge S Norrish QC

Background

The offender was sentenced for four offences committed across two separate events in April 2013. At the time of both offences, he was on parole, which had already been revoked by the Parole Authority for non-compliance with reporting conditions before his arrest.

The first event occurred at Narrandera on 11 April 2013. The offender entered the home of a 68-year-old woman known to him through her son, stole an iPad, subjected her to an assault, and detained her without consent with the intention of preventing her from contacting police. The second event occurred at Westmead on 29 April 2013, where he broke into another property and stole an iPad and approximately $400 in cash.

The offender pleaded guilty to all four charges. He had been in custody since his arrest on 4 May 2013.

  • What sentencing discount applied for guilty pleas entered at different stages of proceedings (committal for sentence versus arraignment on indictment)?
  • How should the sentences be structured, accounting for the period spent serving the revoked parole balance?
  • Whether the multiple Narrandera offences should be served concurrently or cumulatively with each other, and how the Narrandera sentences should relate to the Westmead sentence?
  • Whether special circumstances existed warranting an adjustment to the standard ratio between non-parole period and balance of sentence?

Decision

Judge Norrish applied a 25% discount for the Westmead offence, which had been committed to the District Court for sentence following a Local Court guilty plea. A lower discount of 20% applied to the three Narrandera offences, which had been committed for trial and were not resolved until arraignment on indictment. These different discounts reflected the different stages at which the pleas were entered, consistent with the guideline in R v Thomson and Houlton.

On sentence commencement, His Honour adopted 1 September 2013 as the effective start date for all sentences. This was partly through the balance-of-parole period the offender was serving from 4 May 2013. Relying on R v Callaghan, the court avoided double-counting the parole breach as both an aggravating factor and a period of custody counted against sentence, while still treating the breach of conditional liberty as a relevant aggravating consideration.

The three Narrandera offences were ordered to be served concurrently with one another. The assault and the detention charges were so closely connected, and the assault had been taken into account within the context of the aggravated break and enter and detention charges, that concurrent terms were appropriate. The Narrandera sentences were then made cumulative upon the non-parole period for the Westmead offence.

The accumulation of sentences, combined with other factors, constituted special circumstances justifying an adjustment to the ratio between non-parole period and balance of sentence. The total effective sentence was five years and ten months, with a non-parole period of three years commencing 1 September 2013. The offender became eligible for parole on 31 August 2016.

Orders Made

  • Westmead break, enter and steal: Sentenced to 2 years and 3 months imprisonment, with a non-parole period of 1 year, commencing 1 September 2013 and expiring 30 November 2015.
  • Narrandera aggravated break, enter and steal (with deprivation of liberty): Convicted and sentenced to a non-parole period of 2 years commencing 1 September 2014, expiring 31 August 2016; balance of sentence of 2 years and 10 months, expiring 30 June 2019.
  • Common assault: Convicted and sentenced to 10 months imprisonment, commencing 1 September 2014, expiring 30 June 2015.
  • Detaining with intent to obtain advantage: Convicted and sentenced to a non-parole period of 2 years commencing 1 September 2014, expiring 31 August 2016; balance of sentence of 10 months, expiring 31 July 2017.
  • All Narrandera sentences were concurrent with each other and cumulative upon the non-parole period for the Westmead sentence.
  • Earliest parole eligibility: 31 August 2016.

Key Takeaways

  • The District Court applied different guilty plea discounts (25% versus 20%) depending on the stage at which pleas were entered: a higher discount applied where the matter was committed for sentence, and a lower discount where the matter was committed for trial and resolved only on arraignment on indictment.
  • Where an offender is serving a revoked parole balance at the time of sentencing, the sentencing court must take care to avoid "double dipping," that is, both treating the parole breach as an aggravating factor and failing to account for the time already spent in custody on the parole balance.
  • Concurrent sentences across multiple charges arising from a single criminal episode are appropriate where the charges substantially overlap in their subject matter, including where an assault has been taken into account within the circumstances of a more serious aggravated offence.
  • Accumulation of sentences across separate criminal events, combined with the need for extended supervision on release, can constitute special circumstances justifying a departure from the standard relationship between non-parole period and total sentence.
  • Under Pearce v The Queen, an appropriate sentence must be fixed for each individual offence, even where some sentences are ultimately made concurrent.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), including s 112(2) (aggravated break, enter and steal)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- R v Thomson and Houlton [2000] NSWCCA 309
- R v Callaghan (2006) 160 A Crim R 145
- Pearce v The Queen (1998) 194 CLR 610
- Muldrock v R (2011) 244 CLR 120
- Bugmy v The Queen [2013] HCA 37
- Munda v The Queen [2013] HCA 38
- R v Allen [2010] NSWCCA 47
- John Hunter v R [2011] NSWCCA 141
- R v McLaren [2012] NSWCCA 284
- R v Speechley [2012] NSWCCA 130
- R v Newell [2004] NSWCCA 183
- Fernando (principles relating to Aboriginal offenders and background disadvantage)