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District Court 29 June 2017

R v Stewart Hudson aka Anu

[2017] NSWDC 157

Assault & violenceTheft & propertyTraffic & drivingFirearms & weaponsPublic order & justice offences
AGGREGATE SENTENCE

Citation: R v Stewart Hudson aka Anu [2017] NSWDC 157
Court: District Court of New South Wales
Date: 29 June 2017
Judge: Mahony SC DCJ

Background

The offender faced sentencing on 12 separate offences committed over approximately five weeks between 1 October and 4 November 2015 in the Wagga Wagga region. The offences spanned three groups: matters committed for sentence from Wagga Wagga Local Court in April 2016, matters in which guilty pleas were entered in the District Court in March 2017, and a further matter committed for sentence from the Local Court in May 2017.

The offences included multiple counts of aggravated break, enter and steal (some committed in company), an attempted aggravated break and enter, a break and enter, receiving stolen property, taking and driving a conveyance without consent, two counts of failing to stop for police while driving dangerously, resisting a police officer, and assaulting a police officer. Among the more serious individual incidents, the offender broke into a residential garage in the early hours of 1 October 2015 and stole firearms and approximately $6,300 in cash from a gun safe; on 4 November 2015 he participated in a further break-and-enter and then led police on two separate dangerous pursuits before being arrested.

Critically, the offender was on parole when he committed all of these offences. His parole was subsequently revoked and confirmed from 4 December 2014, meaning he was required to serve an unexpired parole period of 3 months and 24 days from 4 November 2015. That period expired on 27 February 2016, so any new custodial sentence was to commence on 28 February 2016.

  • What aggregate sentence was appropriate for 12 offences spanning break-and-enters, police pursuits, and offences against police, given the offender's criminal history and parole status at the time of offending?
  • How should the court apply the principle of totality when constructing an aggregate sentence under s 53A of the Crime (Sentencing Procedure) Act 1999?
  • What weight should be given to the offender's Indigenous background under the principles in R v Fernando and Bugmy v R?
  • What discount, if any, was appropriate for the guilty pleas entered at various stages?
  • How should the co-offender's sentence (imposed by Judge English) inform parity considerations for Sequences 13 and 14?

Decision

His Honour imposed a single aggregate sentence under s 53A of the Crime (Sentencing Procedure) Act 1999, covering all 12 conviction offences across the three groups. The aggregate approach allowed the court to fix one non-parole period and one balance of term that reflected the overall criminality of the conduct, rather than accumulating individual sentences.

The court took into account the offender's Aboriginal background and disadvantaged upbringing in accordance with the principles established in R v Fernando and affirmed by the High Court in Bugmy v R, though those principles did not reduce the objective seriousness of the offending. The offender's prior criminal record and his status as a parolee at the time of all offences were significant factors that weighed against leniency. Some discount was afforded for the guilty pleas, though the timing and circumstances of those pleas affected the extent of the discount available.

Parity with the co-offender Cutmore, sentenced by Judge English on 10 June 2016, was considered for Sequences 13 and 14. Judge English had given indicative sentences of 12 months and 15 months respectively for those two offences within an aggregate sentence. His Honour had regard to those figures when calibrating the present sentence to avoid unjustifiable disparity between co-offenders.

For the three offences on the s 166 certificate (never-licensed driving on two occasions and possessing housebreaking implements), the court recorded convictions but imposed no further penalty under s 10A of the Crime (Sentencing Procedure) Act 1999. Mandatory licence disqualification of three years was ordered for each of the two police pursuit offences.

Orders Made

  • The offender was convicted of all 12 principal offences (Sequences 1, 4, 5, 7, 9, 11, 12, 13, 14, 15, 17, and 18).
  • An aggregate sentence of 4 years and 6 months imprisonment was imposed under s 53A of the Crime (Sentencing Procedure) Act 1999.
  • Non-parole period of 2 years and 6 months, commencing 28 February 2016 and expiring 27 August 2018.
  • Balance of term of 2 years, commencing 28 August 2018 and expiring 27 August 2020.
  • For Sequences 6, 8, and 10 (s 166 certificate offences): convicted but sentenced to no further penalty under s 10A.
  • For Sequences 7 and 9 (police pursuit offences): mandatory licence disqualification of 3 years on each count.
  • The Form 1 matter (Sequence 20, being carried in a conveyance taken without consent) was certified and taken into account with Sequence 17.

Key Takeaways

  • An aggregate sentence under s 53A of the Crime (Sentencing Procedure) Act 1999 is an available mechanism when sentencing an offender for multiple offences across different court proceedings, provided the overall sentence reflects the totality of the criminality involved.
  • Offending committed while on parole is a materially aggravating factor under the Crimes (Sentencing Procedure) Act 1999, and the unexpired parole period must be served before any new sentence commences.
  • Under Bugmy v R and R v Fernando, an offender's Aboriginal background and social disadvantage are recognised sentencing considerations, though they do not diminish the objective gravity of serious property and pursuit offences.
  • Where co-offenders are sentenced separately, the parity principle requires the later sentencing court to consider the sentences already imposed, particularly for offences alleged to have been committed in company, to avoid unjustifiable disparity.
  • Convictions recorded under a s 166 certificate (related summary offences) may attract no further penalty under s 10A, while mandatory sentencing consequences such as licence disqualification for police pursuit offences remain non-discretionary regardless of the sentencing structure adopted.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 51B(1), 58, 60(1), 112(1)(a), 112(2), 113(2), 118(1), 154A(1)(a), 154A(1)(b)
- Crime (Sentencing Procedure) Act 1999 (NSW), ss 10A, 53A
- Criminal Procedure Act 1986 (NSW), s 166

Cases
- Bugmy v R [2013] HCA 37
- Kennedy v R [2010] NSWCCA 260
- Mill v R (1988) 166 CLR 59
- R v Fernando (1992) 76 A Crim R 58