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District Court 23 August 2017

R v AULD, Darryl

[2017] NSWDC 316

Assault & violenceTheft & propertyPublic order & justice offences
CRIMINAL SENTENCE INTIMIDATION BREAKING INTO PRIVATE HOME OFFENDER INTOXICATED LENGTHY CRIMINAL HISTORY

Citation: R v AULD, Darryl [2017] NSWDC 316
Court: District Court of New South Wales
Date: 23 August 2017
Judge: Judge S Norrish QC

Background

The offender, Darryl Auld, appeared for sentencing in the Broken Hill District Court following committal from the Local Court. He had pleaded guilty to one count of aggravated breaking and entering and committing a serious indictable offence, contrary to s 112(2) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is 20 years imprisonment, with a standard non-parole period of five years.

The offence occurred on 16 October 2016. In the early hours of that morning, the offender, heavily intoxicated and armed with a 21-centimetre serrated steak knife, forced his way through the back door of a neighbouring woman's home in Broken Hill. The victim was inside with her two young children. The offender was known to the victim and had apparently been drinking with a group of people earlier that evening at local premises after a pool competition.

Once inside, the offender brandished the knife, shouted at the occupants, and lunged at the victim when she told him to leave. She stepped aside to avoid being stabbed. This lunge constituted the relevant act of intimidation, which was the "serious indictable offence" component of the charge. The aggravating circumstance was that the offender was armed with an offensive weapon at the time.

  • Whether the objective seriousness of the offending fell within, above, or below the middle range for the purposes of the standard non-parole period under s 54A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • What discount, if any, was appropriate for the utilitarian value of the early guilty plea
  • How mitigating and aggravating factors should be weighed in determining the appropriate sentence, including the offender's intoxication, criminal history, employment prospects, and remorse

Decision

Judge Norrish assessed the objective seriousness of the offence as falling below the middle range. Two factors informed that conclusion. First, intimidation carries a maximum penalty of only five years imprisonment, placing it at the very lowest end of the spectrum of "serious indictable offences" capable of supporting a charge under s 112. Far more serious offences, such as sexual assault, could equally satisfy that element. Second, the agreed facts indicated the offender did not break into the premises with the purpose of targeting the victim. His apparent intention was to confront male occupants he believed had made comments about his partner, and the victim became caught up in a confrontation not directed at her.

The court accepted that the offence was nonetheless serious in context. The victim was intimidated with a knife inside her own home, which was an aggravating factor. The offender's heavy intoxication was not treated as mitigation. The presence of children in the house, while distressing for the victim, was not a factor that could be held against the offender given the agreed facts established he was unaware of the children until the victim told him during the incident.

The court gave the offender a full 25% discount for the utilitarian benefit of his guilty plea, entered at the first reasonable opportunity in late February 2017. The court also noted the offender's remorse, his lengthy criminal history (including prior violence and alcohol-related offending), and the arrangement of full-time employment as factors bearing on the sentence. Sentencing was adjourned to allow preparation of a Community Corrections report, with the offender's bail continued on condition he report to Community Corrections within seven days and appear by audio-visual link in late October 2017.

Orders Made

• Bail continued for two months
• Offender to report to Community Corrections within seven days
• Offender to cooperate with Community Corrections Service in preparation of a report
• Offender to appear before the court at 9am central summer time, Friday, 27 October by audio-visual link

Key Takeaways

  • The District Court found that, in assessing objective seriousness under s 54A(2) of the Crimes (Sentencing Procedure) Act 1999, the nature of the specific "serious indictable offence" committed during a break and enter is directly relevant. Intimidation, carrying a five-year maximum, sits at the lower end of offences capable of satisfying that element of the charge.

  • Where agreed facts do not establish that an offender broke into premises with the intention of targeting the particular victim, this bears on the character of the offending and can place objective seriousness below the mid-range, even where force was used to gain entry.

  • Heavy intoxication at the time of the offence was not treated as a mitigating factor, consistent with established sentencing principle.

  • A 25% discount for the utilitarian value of a guilty plea entered at the first reasonable opportunity remains applicable, following the principles in R v Thomson and Houlton [2000] NSWCCA 309 and summarised in R v Borkowski [2009] NSWCCA 102.

  • The court observed, in passing, that pre-sentence reports from Community Corrections should be provided to the Crown before being presented to the court, expressing ongoing concern that the prosecution only sees such reports after they are filed.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A(2), Division 1A of Part 4

Cases
- R v Thomson and Houlton [2000] NSWCCA 309, (2000) 49 NSWLR 383
- R v Borkowski [2009] NSWCCA 102
- R v Way (2004) 60 NSWLR 168
- Muldrock v R (2011) 244 CLR 120
- Yardley v Betts (1979) 22 SASR 108
- R v Blackman and Walters [2001] NSWCCA 121