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District Court 6 May 2016

R v John Barber

[2016] NSWDC 68

DrugsTheft & propertyTraffic & drivingDomestic & family violencePublic order & justice offences
SENTENCING AGGREGATE SENTENCE

Citation: R v John Barber [2016] NSWDC 68
Court: District Court of New South Wales
Date: 6 May 2016
Judge: Mahony SC DCJ

Background

The offender pleaded guilty to eight offences arising from a series of connected events in Wollongong and Wagga Wagga in late 2015. The three principal offences, committed for sentence to the District Court, were taking and driving a conveyance without consent, stalking and intimidating a former domestic partner, and aggravated break, enter and steal. A further five offences were dealt with by way of a certificate under s 166 of the Crimes (Sentencing Procedure) Act 1999, including dangerous driving, driving whilst disqualified, two counts of entering enclosed lands, and possessing a prohibited drug.

The offences unfolded over a single day on 7 December 2015. The offender drove a vehicle he had retained without the owner's consent from Wollongong to Wagga Wagga, located and threatened a former domestic partner's acquaintance at the address where she was staying, and then fled police at speeds exceeding 150 km/h. After concealing the vehicle, he entered two properties without permission and ultimately broke into an occupied family home, where he confronted a resident and her young children and stole a high-visibility shirt in an attempt to evade police.

The offender had a prior criminal history including previous driving offences, drug possession, and prior convictions for possessing a knife in public. He had been in custody since his arrest on 7 December 2015.

  • How to approach sentencing across multiple offences of varying seriousness, including by way of an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999
  • What indicative individual sentences were appropriate for the three principal offences, and how those sentences should be reflected in the aggregate
  • Whether the aggregate sentence needed to demonstrate some degree of accumulation among the component sentences
  • How to deal with the breach of a s 9 good behaviour bond arising from the commission of the subject offences

Decision

His Honour sentenced the offender to an aggregate term under s 53A of the Crimes (Sentencing Procedure) Act 1999 for the three principal offences. Before arriving at the aggregate, the court identified indicative individual sentences to ensure transparency in the sentencing exercise: 6 months for taking and driving a conveyance, 6 months for stalking and intimidating, and 2 years and 3 months (with a non-parole period of 15 months) for the aggravated break, enter and steal.

The court acknowledged the principle that an aggregate sentence must demonstrate some accumulation among the component sentences, drawing on R v Rae [2009] NSWCCA 9. The aggregate sentence imposed exceeded the longest individual indicative term, reflecting the overall criminality of the combined conduct rather than simply adopting the single most serious sentence.

For the s 166 Certificate matters, concurrent terms of 3 months were imposed for the dangerous driving and driving whilst disqualified offences, both backdated to 7 December 2015. Convictions with no further penalty were recorded for the two entries onto enclosed lands and the drug possession. The court also made a formal domestic violence order classifying the stalking conviction under the Crimes (Domestic and Personal Violence) Act 2007. In respect of the s 9 bond breach, the court took no further action.

Orders Made

  • Convicted of taking and driving a conveyance (s 154A(1)(a), Crimes Act 1900), stalking and intimidating (s 13(1), Crimes (Domestic and Personal Violence) Act 2007), and aggravated break, enter and steal (s 112(2), Crimes Act 1900)
  • Aggregate sentence of 2 years and 6 months imprisonment: non-parole period of 18 months commencing 7 December 2015 and expiring 6 June 2017; balance of term 12 months from 7 June 2017 to 6 June 2018
  • Parole eligibility date: 6 June 2017
  • No further action on the s 9 bond breach (s 98(2)(a), Crimes (Sentencing Procedure) Act 1999)
  • Drive manner dangerous: 3 months imprisonment from 7 December 2015; disqualified from driving for 3 years
  • Drive whilst disqualified: 3 months imprisonment from 7 December 2015; disqualified from driving for 2 years
  • Enter enclosed lands (x 2): conviction recorded, no penalty (s 10A(1))
  • Possess prohibited drug: conviction recorded, no penalty (s 10A(1))
  • Stalking conviction declared a domestic violence offence under s 12 of the Crimes (Domestic and Personal Violence) Act 2007

Key Takeaways

  • Under s 53A of the Crimes (Sentencing Procedure) Act 1999, a court imposing an aggregate sentence must still identify indicative individual sentences for each offence to maintain transparency in the sentencing process.
  • An aggregate sentence must demonstrate some accumulation among the component sentences; it cannot simply mirror the longest individual term, as confirmed by reference to R v Rae [2009] NSWCCA 9.
  • Where a standard non-parole period is prescribed for a particular offence, the court must specify a non-parole period when giving the indicative sentence for that offence, but this is not required for offences without a standard non-parole period, consistent with McIntosh v R [2015] NSWCCA 184 and JM v R [2014] NSWCCA 297.
  • The District Court treated the aggravated break, enter and steal as the most serious offence in the series, carrying a maximum of 20 years and a standard non-parole period of 5 years, which anchored the indicative sentencing analysis.
  • A stalking and intimidation conviction under s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 can be formally classified as a domestic violence offence by separate order under s 12 of that Act.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 112(2), 154A(1)(a)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 12, 13(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 10A, 12, 53A, 98(2)(a)
- Drug (Misuse and Trafficking) Act 1985 (NSW), s 10(1)
- Inclosed Lands Protection Act 1901 (NSW), s 4(1)(b)
- Road Transport Act 2013 (NSW), ss 54(1)(a), 117(2)

Cases
- JM v R [2014] NSWCCA 297
- McIntosh v R [2015] NSWCCA 184
- Pearce v R (1998) 194 CLR 610
- R v Cahyadi (2007) 168 A Crim R 41
- R v Caldwell [2016] NSWCCA 55
- R v Rae [2009] NSWCCA 9
- Zreika v R [2012] NSWCCA 44