Citation: R v Stewart [2016] NSWDC 423
Court: District Court of New South Wales
Date: 21 April 2016
Judge: Judge S Norrish QC
Background
The offender, Thomas Stewart, was sentenced for three principal offences committed between February 2014 and January 2015, together with additional offences taken into account on two Forms 1 (a Form 1 lists related offences that are not charged separately but are considered at sentencing to avoid piecemeal proceedings). At the time of sentencing he was 21 years old, turning 22 later that year.
The principal offences were: attempted robbery in company at a bakehouse in Wheeler Heights (February 2014), where the offender and others approached a lone baker brandishing knives and demanding money; intimidation with intent to cause fear of physical harm directed at a co-accused, Nathan Youd, after Stewart was charged in relation to the robbery (June 2014); and aggravated break, enter and steal at commercial premises knowing persons were present or within (January 2015). The Form 1 matters included two thefts from commercial premises in Crows Nest, a break and enter at an office building in Belrose, and a break and enter at the Manly Sea Life Sanctuary.
A further complication arose from the offender's criminal history and his repeated offending while on conditional liberty, which the court treated as an aggravating factor. Judge Norrish had previously sentenced two co-accused, Nathan Griffin and Nathan Youd, in relation to the attempted robbery, and had regard to those remarks when considering parity.
Legal Issues
- What was the appropriate sentence for each principal offence, having regard to the maximum penalties, the standard non-parole period (where applicable), and the objective seriousness of the conduct?
- How should the principles of parity be applied, given that two co-offenders had already been sentenced for the common attempted robbery charge?
- How should the principle of totality operate across multiple offences and separate Forms 1 to produce a just overall sentence?
- What weight should be given to the offender's youth, personal circumstances, and prospects of rehabilitation?
- How should repeated breaches of conditional liberty be treated as an aggravating factor?
Decision
Judge Norrish sentenced the offender to an effective term of four and a half years imprisonment, with the sentence dating from 1 March 2015 (reflecting time already spent in custody). The non-parole period was set to expire on 28 February 2017, leaving a parole supervision tail of two and a half years. The judge expressly explained to the offender that if parole were revoked for a material breach, the Parole Authority, not the court, would determine when he could again be released.
On parity, the court had regard to the earlier sentences imposed on co-accused Griffin and Youd for the shared attempted robbery in company charge. The sentencing of those offenders provided a reference point, though the judge also weighed factors particular to Stewart, including his criminal record, his conduct in lying to police when interviewed, and the intimidation he directed at Youd after being charged, all of which distinguished his position from his co-accused.
On totality, the judge acknowledged the need to avoid a crushing sentence while still imposing a term that reflected the seriousness of the collective offending. The various offences were structured with partial concurrency to achieve a sentence that was proportionate to the overall criminality without being disproportionate to the offender's circumstances and age.
The court noted that, although several offences involved relatively modest property values, all were nonetheless properly before the court and were taken into account. The judge directed no action in relation to breaches of bonds that had since expired, treating those matters as already subsumed within the overall sentencing exercise, while still recording the aggravating feature of offending on conditional liberty.
Orders Made
• Total sentence of four and a half years imprisonment with a non-parole period of two years imprisonment
• Non-parole period to expire on 28 February 2017
• Balance of sentence of two years six months to expire on 31 August 2019
• Sentences are cumulative or partly cumulative upon sentences imposed at Local Court
• No order for compensation made
• No action directed in relation to expired bonds
Key Takeaways
- The District Court applied the parity principle by examining earlier sentences imposed on co-accused for the same attempted robbery charge, while giving independent weight to factors specific to Stewart, including his dishonesty with police and his intimidation of a co-accused witness.
- Where an offender commits multiple offences across an extended period while repeatedly on conditional liberty, that pattern of breach is an aggravating factor, even where the underlying bonds have since expired.
- Under the totality principle, a sentencing court must structure concurrent and cumulative terms to avoid an aggregate sentence that is disproportionate to the overall criminality, particularly where a young offender is involved.
- A Form 1 procedure allows related uncharged offences to be taken into account at sentencing without separate conviction, thereby avoiding fragmented proceedings while still reflecting the full scope of the offending.
- Youth at the time of offending is a relevant factor in mitigation, but it does not override the need to reflect objective seriousness, criminal history, and the aggravating circumstances of individual offences.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Act 1900 (NSW), ss 97(1), 112(1), 112(2)
Cases
- Attorney General's Application (No 1) of 2002 (2002) 56 NSWLR 147
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- Harris and Huynh [2005] NSWCCA 220
- Mill v R (1988) 166 CLR 59
- Pearce v R (1998) 194 CLR 610
- R v Ponfield [1999] NSWCCA 435
- Veen (No 2) v The Queen (1988) 165 CLR 465