Citation: R v Leslie John Sullivan [2017] NSWDC 219
Court: NSW District Court
Date: 1 March 2017
Judge(s): Whitford SC DCJ
Background
The offender appeared for sentence on three offences arising from a single incident: aggravated entry into a dwelling with intent to commit larceny, stealing property from a dwelling house, and indecent assault. The indecent assault was dealt with on a certificate under s 166 of the Criminal Procedure Act, capping the available sentence at the summary jurisdictional limit of two years.
The offender was 37 at the time of the offences. He is an Aboriginal man with a deeply troubled background, including childhood abuse in foster care, petrol sniffing from age six, longstanding drug and alcohol use, and significant cognitive impairment resulting in part from serious brain injuries sustained in a 2009 bicycle accident. He had entered early guilty pleas to all three charges.
The agreed facts established that the offender knew the victim, an elderly woman, was present in her home at the time of the offending. Property worth approximately $8,000, including items of significant sentimental value, was taken. An indecent assault also occurred in the victim's home.
Legal Issues
- What was the appropriate assessment of the objective seriousness of the three offences?
- What weight should be given to the offender's extensive criminal history in the context of his background and cognitive impairment?
- How should the offender's Indigenous background, history of abuse, and cognitive limitations affect the sentence?
- Was a finding of special circumstances warranted to extend the supervision period on parole?
- What aggregate sentence was appropriate across the three offences?
Decision
Objective seriousness: Whitford SC DCJ assessed the offending as falling below the mid-range of objective seriousness. The only aggravating circumstance for the entry offence was the offender's knowledge that the victim was present, which the court regarded as comparatively less severe than other available aggravating factors. The underlying serious indictable offence was larceny, sitting at the lower end of possible offences for that charge. Drawing on the framework in John Hunter v R [2011] NSWCCA 141, only two of the factors associated with mid-range seriousness were present: the victim's fear and the significant value of the stolen property.
Subjective circumstances: The court gave detailed attention to the offender's background. His removal from family at age seven, placement with a foster carer who subjected him to sexual and physical abuse, and subsequent transience and disconnection from community formed an important part of the sentencing picture. The brain injuries he sustained in 2009, including a right frontal craniotomy and partial lobotomy, contributed to a significant cognitive impairment: his non-verbal scores placed him in the lower extreme range, with 99% of the general population scoring higher. The court accepted his remorse as genuine, expressed through his pleas, his pre-sentence report, his discussions with the forensic psychologist, and letters written directly to the court.
Criminal history and rehabilitation: The offender's lengthy prior record, dating from childhood, meant he could not receive leniency he might otherwise have attracted. However, the court did not treat the record as aggravating the objective seriousness of the current offending. His prospects for rehabilitation were described as guarded, though the court observed that past failures under supervision may have reflected inadequate recognition of his cognitive needs rather than deliberate non-compliance.
Special circumstances and the aggregate sentence: The court found special circumstances warranted, given the close supervision the offender would require upon release. An aggregate sentence was imposed, implicitly reflecting some accumulation to recognise the distinct criminality of each offence, particularly the s 166 indecent assault.
Orders Made
- The offender was convicted of all three offences.
- An aggregate sentence of imprisonment was imposed, consisting of a non-parole period of one year and ten months (commencing 14 June 2016, expiring 13 April 2018) and a balance of term of one year and five months, giving a total effective sentence of three years and three months.
- The offender was made eligible for release to parole on 13 April 2018.
- Indicative individual sentences (each incorporating a 25% plea discount): aggravated entry into a dwelling, two years and seven months; stealing from a dwelling house, one year and three months; indecent assault, nine months.
- The forensic psychologist's report was directed to be attached to the warrant, and the court recommended it be conveyed to Community Corrections Service upon the offender's eventual release.
Key Takeaways
- The District Court applied the John Hunter framework to assess objective seriousness, finding that only two of the factors associated with mid-range seriousness were present, placing the entry offence below that range.
- A 25% discount applied to all three charges in recognition of early guilty pleas, consistent with established sentencing practice.
- Cognitive impairment arising from serious brain injury formed a significant part of the court's subjective circumstances analysis, with the court expressly noting that past supervision failures may have reflected inadequate accommodation of those impairments rather than wilful non-compliance.
- Special circumstances were found to exist where an offender's cognitive limitations and need for close supervision justified extending the proportion of the sentence spent under community supervision on parole.
- The court directed that a forensic psychology report be attached to the custodial warrant and recommended it accompany the offender upon release, reflecting the view that meaningful rehabilitation requires proper recognition of the offender's particular cognitive needs by correctional and community services.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1999 (NSW), s 166
Cases
- John Hunter v R [2011] NSWCCA 141