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District Court 19 November 2015

R v Armstrong

[2015] NSWDC 363

Assault & violenceFirearms & weaponsDomestic & family violencePublic order & justice offences
CRIMINAL LAW SENTENCE PARTICULAR OFFENCES COMMITTED IN HOME OF VICTIM CHILDREN PRESENT INFLICTION OF CORPOREAL VIOLENCE

Citation: R v Armstrong [2015] NSWDC 363
Court: District Court of New South Wales
Date: 19 November 2015
Judge: Cogswell SC DCJ

Background

The offender, a 21-year-old man, was sentenced following guilty pleas to two serious offences arising from events on 1 January 2015 in Cowra, NSW. The offences involved a late-night break-in to the home of a former partner, during which her children and elderly mother were present. The offender punched the victim to the face, causing injury to her teeth and lips, and then armed himself with a kitchen knife taken from the premises.

When police attended, the offender raised the knife and made a slashing motion toward a senior constable, forcing the officer back into his vehicle. A second officer deployed a taser to subdue him. The offender was arrested after dropping the knife and made threatening statements to police upon arrest.

Despite his youth, the offender came before the court with an extensive criminal record, including Children's Court matters for break-enter-and-steal, possession of a knife, and affray, as well as adult convictions for common assault, malicious damage, and stalking. He was serving three good behaviour bonds at the time of the offences.

  • What was the appropriate sentence for aggravated break, enter and commit a serious indictable offence (assault occasioning actual bodily harm) under s 112(2) of the Crimes Act 1900 (NSW), carrying a maximum of 20 years imprisonment?
  • What was the appropriate sentence for using an offensive weapon with intent to prevent lawful arrest under s 33B(1)(a) of the Crimes Act 1900 (NSW), carrying a maximum of 12 years imprisonment?
  • What discount was warranted for pleas of guilty entered at the earliest available opportunity?
  • Whether special circumstances existed to justify altering the statutory ratio between the head sentence and the non-parole period.
  • What action, if any, should be taken in respect of the three breached good behaviour bonds?

Decision

His Honour assessed the aggravated break and enter as falling in the mid-range of objective seriousness. Aggravating features included the commission of violence in the victim's home, the presence of children, the use of the knife as a weapon, and the fact that the offences were committed while the offender was on conditional liberty under multiple good behaviour bonds. The second offence, threatening a police officer with a knife in a slashing motion, was described as a serious example of its type, though not towards the upper end of the scale.

In mitigation, the court accepted that the offender was genuinely remorseful and had demonstrated insight into his offending, both in evidence and as reflected in his presentence report. His work and study in custody, including TAFE courses and an Aboriginal Studies program, were noted positively. The court also took into account his difficult background: he left home at approximately 12 years of age, experienced homelessness, and developed early alcohol and drug problems. Alcohol was a significant contributing factor on the night of the offences.

A 25 percent discount was applied to reflect guilty pleas entered at the earliest available opportunity. The court found special circumstances warranting a departure from the standard non-parole period ratio, citing the offender's youth (21 years old at sentencing), his need for rehabilitation, and the significance of supervision and support upon release to assist his reintegration into the community.

On the three breached good behaviour bonds, the court was satisfied the offender had failed to comply with the conditions of each bond, but decided under s 98(2)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) to take no action in respect of those failures. A Form 1 offence of being armed with intent to commit a serious indictable offence was also taken into account in sentencing for the principal offence.

Orders Made

  • Offender convicted of aggravated break, enter and commit a serious indictable offence (assault occasioning actual bodily harm) contrary to s 112(2) of the Crimes Act 1900 (NSW).
  • Offender convicted of using an offensive weapon with intent to prevent lawful arrest contrary to s 33B(1)(a) of the Crimes Act 1900 (NSW).
  • Form 1 offence (being armed with intent to commit a serious indictable offence) taken into account; certificate signed.
  • Aggregate sentence of 6 years and 3 months imprisonment, backdated to 1 January 2015, expiring 31 March 2021.
  • Non-parole period of 4 years, expiring 31 December 2018, reflecting special circumstances.
  • In respect of the three breached good behaviour bonds: no action taken under s 98(2)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Backup offence of common assault withdrawn and dismissed.

Key Takeaways

  • A guilty plea entered at the earliest available opportunity attracted a 25 percent discount from the sentence that would otherwise have been imposed, consistent with the prosecution's concession on timing.
  • Under s 112(2) of the Crimes Act 1900 (NSW), Parliament has fixed a maximum of 20 years imprisonment and a standard non-parole period of 5 years; however, the standard non-parole period was not applicable here because a guilty plea had been entered.
  • Special circumstances justifying a reduced non-parole period ratio were established where the offender was young, required rehabilitation, and would need structured support and supervision to resettle in the community following release.
  • Committing serious offences while on multiple good behaviour bonds constituted a significant aggravating factor in sentencing, notwithstanding that the court ultimately took no further action on the bond breaches themselves.
  • Genuine remorse, demonstrated insight into offending, productive engagement with work and study in custody, and a difficult personal background including homelessness from childhood were all treated as relevant mitigating considerations, even alongside an extensive prior record and a medium assessed risk of reoffending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(2) (aggravated break, enter and commit serious indictable offence)
- Crimes Act 1900 (NSW), s 33B(1)(a) (using offensive weapon with intent to prevent lawful arrest)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 98(2)(a) (action on breach of good behaviour bond)

Cases cited: None stated in the judgment.