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District Court 29 May 2015

R v FRANKIEWICZ

[2015] NSWDC 309

Assault & violenceTheft & propertyDomestic & family violence
CRIMINAL

Citation: R v Frankiewicz [2015] NSWDC 309
Court: District Court of New South Wales
Date: 29 May 2015
Judge: Judge S Norrish QC

Background

The offender, a 25-year-old man, appeared for sentence on five offences committed between 14 July and 18 August 2014. The principal offence was aggravated breaking and entering with intent to commit an indictable offence under s 112(2) of the Crimes Act 1900, which carries a maximum penalty of 20 years imprisonment and a standard non-parole period of five years. The remaining four offences involved contraventions of an apprehended domestic violence order (ADVO), dealt with summarily but referred to the District Court as related offences under a s 166 Criminal Procedure Act certificate.

The offending arose from the breakdown of an 18-month relationship between the offender and the victim, who had separated around March 2014. A provisional ADVO had been granted in May 2014 after an earlier pattern of assault, intimidation, and property damage directed at the same victim. Despite having been sentenced in the Local Court on those earlier matters in June 2014, receiving s 9 bonds and a community service order, the offender reoffended within approximately two months.

All five offences the subject of sentencing were committed while the offender was subject to conditional liberty, namely a community service order and good behaviour bonds relating to prior offences against the same victim. The court noted significant concern that the earlier Local Court proceedings had not resulted in supervision, counselling, or any directed intervention for the offender.

  • The appropriate sentence for the principal indictable offence under s 112(2) of the Crimes Act 1900, taking into account the standard non-parole period.
  • Whether a 25% discount for the utilitarian value of an early guilty plea applied to both the indictable matter and the four summary matters referred on the s 166 certificate.
  • How the principles of totality required the various sentences to be structured, including the degree of accumulation or concurrency across the five matters.
  • The weight to be given to the offending occurring while the offender was on conditional liberty, and to his personal circumstances including age and prior criminal history.

Decision

The court accepted that the offender was entitled to a 25% discount on all five matters for the utilitarian value of his early pleas of guilty, consistent with the guideline in R v Thomson and Houlton. The court applied the same discount to the summary matters on the s 166 certificate, noting they had been placed on that certificate in anticipation of guilty pleas.

The court treated the commission of all offences while the offender was subject to a community service order and s 9 bonds as a significant aggravating factor. The court expressed regret that the earlier Local Court sentencing had apparently not been accompanied by any meaningful supervision or counselling, leaving the offender without directed intervention during the two-month period before his arrest.

The court applied totality principles, drawing on Pearce v R and R v Hammoud, to structure the sentences. The contravention committed on the same occasion as the principal offence was treated as partly accumulative on that principal offence. The three remaining AVO contravention sentences were ordered to run concurrently with one another, with the principal offence and the first contravention partly accumulative upon them.

The resulting total sentence was four years and three months imprisonment, with a non-parole period of two years. The offender, having been in custody since 18 August 2014, became eligible for release to parole on 17 August 2016, with parole supervision to run for two years and three months thereafter.

Orders Made

  • Total sentence of four years and three months imprisonment imposed across all five matters.
  • Non-parole period of two years, commencing 18 August 2014.
  • Eligible for release to parole on 17 August 2016.
  • Parole supervision to continue for two years and three months following release.
  • Sentences for the three later AVO contraventions (sequences 2, 5, and 6) ordered to run concurrently with one another.
  • Sentences for the principal offence and the first AVO contravention (sequence 1) ordered to be partly accumulative upon the other sentences.

Key Takeaways

  • A 25% discount for utilitarian value of an early guilty plea applied not only to the indictable principal offence but also to the four summary matters referred to the District Court on a s 166 Criminal Procedure Act certificate, where those matters had been referred in anticipation of guilty pleas.
  • Offending while subject to conditional liberty, including community service orders and good behaviour bonds, operates as a significant aggravating factor, particularly where the prior offending bore similar characteristics and involved the same victim.
  • Totality principles under Pearce v R required careful structuring of multiple sentences, with some concurrency and some accumulation depending on the temporal relationship between the individual offences.
  • Where an offence is itself the manifestation of an AVO contravention, the sentencing court treated the contravention sentence as partly accumulative on the principal offence rather than simply concurrent.
  • The District Court flagged concern about the adequacy of post-sentencing supervision at the Local Court level, noting that perfunctory community service without counselling or directed attention represented a missed opportunity to address the offender's conduct, to the detriment of the victim.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9
- Criminal Procedure Act 1986 (NSW), ss 166, 167

Cases:
- R v Thomson and Houlton [2000] NSWCCA 309
- Pearce v R (1998) 194 CLR 610
- R v Hammoud [2000] NSWCCA 540
- Muldrock v R (2011) 281 ALR 652
- Markarian v R [2005] HCA 29
- DPP v De La Rosa [2010] NSWCCA 194
- Andrew Smith v R [2013] NSWCCA 209
- Huynh v R [2005] NSWCCA 220
- Marshall v R [2007] NSWCCA 24
- Palijan v R [2010] NSWCCA 142
- R v Ponfield (1999) 48 NSWLR 327