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District Court 27 February 2015

R v Burns; R v Usher

[2015] NSWDC 174

Fraud & dishonestyTheft & property
CRIMINAL

Citation: R v Burns; R v Usher [2015] NSWDC 174
Court: District Court of New South Wales
Date: 27 February 2015
Judge(s): Judge S Norrish QC

Background

Two co-offenders, Burns and Usher, appeared for sentencing in relation to a series of offences arising from a joint criminal enterprise. The offending centred on an aggravated break and enter with intent to steal on 10 October 2013 and an aggravated breaking, entering and stealing on 13 October 2013, along with charges of knowingly dealing with proceeds of crime.

Burns had pleaded guilty at the Local Court to three charges and was committed for sentence to the District Court. Usher had been committed for trial, but entered guilty pleas on arraignment after receiving fresh material from the Crown shortly before trial. The two offenders therefore faced sentence together but with meaningful differences in their procedural histories, the charges each faced, and the discounts applicable to their pleas.

A further complication arose in Usher's case: the 10 October offence (to which Burns had pleaded guilty as a discrete charge) was dealt with on a Form 1 for Usher, meaning it was taken into account when sentencing him on the principal offence rather than being charged separately. Burns also faced two minor possession of prohibited drugs charges that were resolved at the sentencing hearing.

  • What sentencing discount applied to each offender for their respective guilty pleas, having regard to the timing and circumstances of those pleas?
  • How should the Form 1 matter be treated in Usher's sentence, and what effect did it have on the starting point for his principal offence?
  • How should parity between co-offenders be achieved, given their different charges, plea timing, criminal histories, and time already spent in custody?
  • Was partial accumulation of sentences warranted, and did it constitute special circumstances justifying a departure from the standard non-parole period ratio?
  • How should the minor drug possession matters against Burns be finalised?

Decision

Burns was entitled to a 25% discount on each sentence, reflecting his guilty pleas at the first reasonable opportunity in accordance with the guideline in R v Thomson and Houlton. Usher received a 10% discount. Although Usher's plea came late, the court accepted that fresh Crown material had prompted it and gave some credit accordingly, while noting the utilitarian benefit of a late plea is reduced compared with an early one.

The court imposed a sentence of three years on count 1 for Burns (aggravated break and enter with intent) and four and a half years on the more serious count 2 (aggravated breaking, entering and stealing), partially accumulated by six months. This produced a total head sentence of five years with a non-parole period of three years. The proceeds of crime charge attracted a concurrent sentence of two years six months. All sentences were backdated to account for time already spent in custody.

For Usher, the Form 1 matter (the 10 October break and enter) increased the starting point for his principal sentence. After the 10% discount, he received five years ten months on the principal charge, with an effective non-parole period of three years three months dating from 18 April 2014. The court balanced the parity considerations carefully, noting that Usher's later parole eligibility date was only marginally behind Burns's, reflecting Usher's longer time in custody offset against Burns's larger discount.

Special circumstances were found in both cases under s 44 of the Crimes (Sentencing Procedure) Act 1999, based on the partial accumulation of sentences and the need for extended supervision. The minor drug possession charges against Burns were dealt with by conviction under s 10A of the Act, with no additional penalty imposed.

Orders Made

Burns:
- Count 1 (aggravated break and enter with intent): 3 years imprisonment, backdated to 28 December 2014
- Count 2 (aggravated breaking, entering and stealing): 4 years 6 months imprisonment, accumulated by 6 months on count 1, producing a total head sentence of 5 years with a non-parole period of 3 years (25% guilty plea discount applied)
- Proceeds of crime charge: 2 years 6 months imprisonment, concurrent with count 2
- Drug possession matters (sequences 4 and 5): convicted under s 10A, no additional penalty
- Special circumstances finding made under s 44

Usher:
- Principal charge (aggravated breaking, entering and stealing, 13 October 2013): 5 years 10 months imprisonment, dating from 18 April 2014 (10% guilty plea discount applied; Form 1 matter taken into account)
- Proceeds of crime charge: 2 years 6 months imprisonment, concurrent
- Effective non-parole period: 3 years 9 months (incorporating the 6-month non-parole period from a separate drive-whilst-disqualified sentence), with parole eligibility from 17 July 2017
- Special circumstances finding made under s 44

Key Takeaways

  • The timing of a guilty plea directly affects the utilitarian discount available: Burns received 25% for pleading at the first reasonable opportunity, while Usher received only 10% for a plea entered on the eve of trial, even accounting for the late receipt of fresh Crown material.
  • Where an offence is included on a Form 1 rather than charged separately, it increases the sentencing starting point for the principal offence without attracting a separate head sentence.
  • Parity between co-offenders does not require identical sentences. The District Court calibrated the outcomes so that both offenders became eligible for parole at approximately the same time, reflecting their different discounts and periods already served in custody.
  • Partial accumulation of sentences can constitute special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999, warranting a non-parole period that represents a higher proportion of the head sentence than would otherwise apply.
  • Minor ancillary charges that arose from the circumstances of arrest may be resolved by conviction without penalty under s 10A of the Act where no additional punishment is warranted.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), including ss 21A, 44, 10A
- Crimes Act 1900 (NSW), ss 112(2), 113(2), 193B(2)

Cases:
- R v Thomson and Houlton [2000] NSWCCA 309 (guideline judgment on guilty plea discounts)
- Muldrock v The Queen [2011] HCA 39
- Markarian v R [2005] 228 CLR 357
- Pearce v R [1998] 194 CLR 610
- Mill v R [1988] HCA 70
- DPP (Commonwealth) v De La Rosa [2010] NSWCCA 194
- R v Huynh [2005] NSWCCA 220
- R v Ponfield [1999] NSWCC 435
- R v Harris [2007] NSWCCA 130
- R v Marshall [2007] NSWCCA 24
- R v Stewart [2005] NSWCCA 290