Citation: Regina v Jay Lindsay John Curtis-Hodge [2016] NSWDC 222
Court: District Court of New South Wales
Date: 15 September 2016
Judge: Judge AC Scotting
Background
The offender appeared for sentence after pleading guilty in the Local Court to robbery in company (maximum penalty: 20 years imprisonment) and driving recklessly during a police pursuit (maximum penalty: 3 years imprisonment). Both offences were committed on 19 November 2014. The offender was taken into custody the following day.
The offender had a substantial criminal history involving serious violence, including a prior armed robbery committed with a sawn-off shotgun against a female bank employee in 2007, and domestic violence offences committed in October and November 2013. He had been on conditional liberty at the time of the current offences, having been the subject of multiple good behaviour bonds and suspended sentences.
Six good behaviour bonds were also before the court for breach. These arose from domestic violence incidents in October and November 2013, including assault occasioning actual bodily harm, stalking and intimidation, common assault, and dangerous driving, for which the offender had previously received section 9 bonds and suspended sentences. The court dealt with those breaches first, consistent with established practice requiring totality to be properly assessed.
Legal Issues
- What sentences were appropriate for the robbery in company and police pursuit offences, having regard to objective seriousness, the offender's criminal history, and his personal circumstances including mental illness?
- How should the guilty plea discount be applied, and what discount was appropriate?
- Whether special circumstances existed justifying a variation to the standard ratio between non-parole period and head sentence.
- How the principles of parity, totality, and the Fernando and Bugmy principles applied to an offender from a disadvantaged background with significant mental health issues and a history of institutionalisation.
- What orders should be made in respect of the six breached good behaviour bonds?
- What licence disqualification period was appropriate for the police pursuit offence?
Decision
Judge Scotting identified the robbery in company as an objectively serious offence, noting the extent of violence used, the vulnerability of the victim, the offender's lengthy record for violent offending, and the fact that the offender was on conditional liberty at the time. The police pursuit offence was also treated as serious in its own right.
The court applied a 25 per cent discount to both sentences to reflect the guilty pleas, in accordance with the principles in R v Thomson and Houlton. The appropriate penalty before discount was assessed at 7 years and 6 months for the robbery and 2 years for the police pursuit offence.
Special circumstances were found to exist. The offender had spent the overwhelming majority of his adult life in custody, with only approximately two years of non-continuous liberty since December 2002. His recent acceptance of medication and treatment for his mental condition provided some basis for rehabilitation. The court determined that an extended period of supervised parole was warranted to assist with community reintegration, vocational training, and management of both addiction and mental health issues.
The court considered the Fernando and Bugmy principles, which recognise that background disadvantage and the effects of deprivation may reduce, though not eliminate, moral culpability. Those principles were weighed against the need for general and specific deterrence, the seriousness of the offending, and the protection of the community.
Orders Made
- Police pursuit offence: convicted; sentenced to imprisonment with a non-parole period of 12 months (from 7 April 2015) and a head sentence of 18 months.
- Robbery in company offence: convicted; sentenced to imprisonment with a non-parole period of 3 years and 3 months (from 7 January 2016) and a head sentence of 5 years and 9 months.
- Total effective sentence (including terms for breached suspended sentences): 7 years imprisonment with a non-parole period of 4 years and 6 months, commencing 7 October 2014.
- Eligible for parole: 6 April 2019.
- Automatic licence disqualification applied for the police pursuit offence (minimum 12 months, maximum 3 years).
Key Takeaways
- The District Court confirmed that where an offender is subject to multiple good behaviour bonds at the time of sentencing, those breaches must be addressed first so that questions of accumulation and totality can be properly resolved, consistent with R v Dinh [2010] NSWCCA 74.
- A 25 per cent guilty plea discount was applied across both offences, reflecting the pleas entered in the Local Court, in accordance with the R v Thomson and Houlton framework.
- Special circumstances justifying a modified non-parole to head sentence ratio were established on the basis of extensive prior institutionalisation and the need for supervised reintegration, not merely the existence of mental illness alone.
- Under the Fernando and Bugmy principles, background disadvantage and mental illness are capable of reducing moral culpability in sentencing, but those principles do not override the requirements of general deterrence, specific deterrence, and community protection where the offending is serious and the criminal history extensive.
- Conditional liberty at the time of offending was treated as a statutory aggravating factor under section 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999, adding to the objective seriousness of both offences.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 51B, 97
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 9, 12, 21A(2)(d), 21A(2)(j), 21A(2)(l), 21A(2)(o), 21A(3)(i), 21A(3)(k), 22, 24(a), 47(3), 98(3), 99, 99(2), 99(4)
Cases:
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v Dinh [2010] NSWCCA 74
- R v Fernando (1992) 65 A Crim R 98
- Muldrock v R (2011) 244 CLR 120
- Hili v The Queen (2010) 242 CLR 520
- Barbaro v The Queen (2014) 253 CLR 58
- R v Henry (1999) 46 NSWLR 346
- R v McNaughton (2006) 66 NSWLR 566
- Baumer v R (1988) 166 CLR 51
- Green v The Queen (2011) 244 CLR 462
- R v Borkowski (2009) 195 A Crim R 1
- R v Engert (1995) 84 A Crim R 67
- Lambert v R [2015] NSWCCA 22
- Palijan v R [2010] NSWCCA 142
- BW v R [2011] NSWCCA 176
- R v Wilkinson (No 5) [2009] NSWSC 432
- R v Scognamiglio (1991) 56 A Crim R 81
- R v Wright (1997) 93 A Crim R 48
- R v Lawrence [2005] NSWCCA 91
- R v Todorovic [2008] NSWCCA 49