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District Court 20 February 2015

R v Presdee

[2015] NSWDC 429

Assault & violenceFraud & dishonestyTheft & property
CRIMINAL LAW SENTENCE ROBBERY ARMED WITH OFFENSIVE WEAPON IN COMPANY LARCENY ACCESSORY AFTER THE FACT

Citation: R v Presdee [2015] NSWDC 429
Court: District Court of New South Wales
Date: 20 February 2015
Judge: Tupman DCJ

Background

The offender, a 41-year-old man with an extensive criminal history, appeared for sentence on 15 substantive offences and multiple Form 1 matters. The offences were committed between approximately 5 January and 16 February 2012, predominantly in the Illawarra region but also in Bathurst and parts of Sydney. They included armed robbery, aggravated break and enter, take and drive conveyances without consent, larceny, and accessory after the fact charges.

Most offences were committed jointly with a co-offender, Adam Craig, as part of a joint criminal enterprise. A smaller group also involved a third person. The offender was arrested on 16 February 2012 and remained in custody on bail refusal from that date.

The offender had been using heroin extensively at the time and committed the offences to fund that addiction. The sentencing court accepted that his long criminal record, which began in the Children's Court in 1989, was substantially connected to a chronic heroin addiction.

  • Whether full parity with the co-offender Craig's sentences applied, given that Craig pleaded guilty early and received a significant discount unavailable to this offender
  • How to treat the relativity of sentences between the two offenders where their roles were identical or very similar
  • Whether the offender's criminal record constituted an independent aggravating circumstance
  • How to structure a commencement date for the sentences, given time already served and earlier Local Court sentences
  • How to apply the totality principle across 15 substantive offences and multiple Form 1 matters
  • The weight to be given to drug addiction and personal background as subjective mitigating factors

Decision

Tupman DCJ determined that strict parity with Craig's sentences did not apply. The offender had either been convicted after a judge-alone trial or had pleaded guilty very late, meaning the substantial discount Craig received for his early pleas was not available. Nonetheless, because the two offenders played identical or very similar roles, the relativity of their sentences remained an important consideration.

The court found that the offender had spent most of his adult life in custody and that this sentence would be the longest continuous term he had ever served. His criminal record, which was extensive and largely for similar offending, came close to constituting an independent aggravating circumstance in the court's view, though the Crown did not press that argument and the court did not formally treat it as such. The record clearly disentitled the offender to leniency and was relevant to assessing his prospects of rehabilitation.

The court accepted that long-standing heroin addiction substantially explained the entire course of offending, consistent with findings made when sentencing Craig. The offender's background, including being evicted from home at 16 and spending much of his adult life incarcerated, was considered in the context of a psychological report and the offender's own evidence.

All sentences were backdated to commence on 16 February 2012, the date of arrest. The court reasoned that, while the offender may have received imprisonment for the earlier drive-whilst-disqualified offence in any event, the Magistrate had effectively no choice but to impose full-time custody given the bail refusal for these far more serious matters. Applying the totality principle, the earlier Local Court sentences were subsumed within the overall sentence structure.

Orders Made

  • Counts 1 and 2 (first indictment): sentences with non-parole periods backdated to 16 February 2012 (specific terms not fully reproduced in available text; structured as standard non-parole period offences)
  • Count 3(a): two-year fixed term, 16 February 2012 to 15 February 2014
  • Counts 4(a) and 5(a): three-year fixed terms, 16 August 2012 to 15 August 2015
  • Count 7: three-year term (18-month non-parole period from 16 February 2013, parole from 16 August 2014 to 15 February 2015)
  • Count 8: two-year term (12-month non-parole period from 16 August 2013, parole from 16 August 2014 to 15 August 2015)
  • Count 9: four-year fixed term, 16 February 2014 to 15 February 2016
  • Second indictment, Counts 1B and 2A: two-year fixed terms, 16 February 2014 to 15 February 2016
  • Second indictment, Counts 6A and 7A: three-year fixed terms, 16 February 2016 to 15 February 2019
  • Second indictment, Count 3: five-year term (12-month non-parole period from 16 February 2019, parole from 16 February 2020 to 15 February 2024)
  • Second indictment, Count 4: four-year term (12-month non-parole period from 16 February 2019, parole from 16 February 2020 to 15 February 2023)
  • Second indictment, Count 5A: six-month fixed term, 16 February 2019 to 16 August 2019
  • For Counts 3 and 4 of the second indictment, the court recommended release to parole at expiry of non-parole periods, subject to supervision including drug and alcohol counselling
  • All Form 1 offences taken into account

Key Takeaways

  • Full parity with a co-offender's sentence does not automatically follow where the co-offender received a substantial early-plea discount unavailable to the offender being sentenced, even where their roles in the offending were identical or very similar. Relativity, rather than strict parity, becomes the operative consideration.
  • A lengthy criminal record for the same type of offending can, in the court's assessment, come close to constituting an independent aggravating circumstance, though whether it crosses that threshold depends on how the matter is argued and the court's own characterisation.
  • Long-standing drug addiction can substantially contextualise a course of offending and inform the court's findings about motivation, even where it does not operate as a formal mitigating factor in the face of a lengthy record.
  • The District Court applied the totality principle to backdate all sentences to the date of arrest, subsuming earlier Local Court sentences where those sentences had effectively been shaped by the bail refusal flowing from the more serious matters.
  • Under section 10A of the Crimes (Sentencing Procedure) Act, convictions for standard non-parole period offences require the court to structure a non-parole period even where the sentence itself has already expired by the time of the sentencing judgment.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW): ss 97(1), 112(2), 113(2), 117, 349(2), 350
- Crimes (Sentencing Procedure) Act 1999 (NSW): s 10A

Cases:
- R v Henry (1999) 46 NSWLR 346