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District Court 3 November 2017

R v Gibbons

[2017] NSWDC 321

Assault & violenceFirearms & weapons
CRIMINAL LAW SENTENCE FORM 1 OFFENDER OF PAROLE AT TIME OF OFFENDING INSTITUTIONALISED OFFENDER.

Citation: R v Gibbons [2017] NSWDC 321
Court: District Court of New South Wales
Date: 3 November 2017
Judge: Berman SC DCJ

Background

The offender was found by police at a shopping centre in warm weather, dressed conspicuously in a black hooded jumper and gloves, and lingering near an ATM. A member of the public, suspicious of his behaviour, called police. On searching the offender, police discovered a knife and a black face covering with a hole cut in it.

The offender explained he had been waiting for a man he believed was having an affair with his partner, and that the man had previously carried a baseball bat. He pleaded guilty to being armed with intent to commit an indictable offence (assault), with a related offence of possessing a means of disguising his face with intent to commit an indictable offence taken into account on a Form 1.

Critically, the offender had been released on parole only four months before this incident, following prior custodial sentences for armed robbery. A psychological report described him as institutionalised, having spent a significant portion of his adult life in custody.

  • What sentence was appropriate for an offender with a substantial history of offending, including prior armed robbery, who committed a serious offence while on parole?
  • How should the court weigh the offender's background and prospects of rehabilitation against his demonstrated pattern of reoffending while on conditional liberty?
  • Whether a finding of special circumstances was justified, given the offender's institutionalisation and prior history of breaching parole conditions?
  • How to structure the commencement date of the sentence to avoid double-counting the fact that the offender was already serving the balance of his parole term?

Decision

His Honour began by invoking the principle from Veen v The Queen [No 2] (1988) 164 CLR 465, which permits a sentencing court to treat a pattern of offending as evidence of a continuing attitude of disobedience toward the law, provided the sentence remains proportionate to the objective gravity of the conduct. The Court of Criminal Appeal had already noted this attitude in the offender's prior proceedings, and Berman SC DCJ found it had unfortunately continued.

The offence was characterised as serious. While the offender claimed he did not intend to use the knife, his Honour observed that the heat of the moment could readily have led to its use. The early guilty plea attracted a 25 per cent discount on the sentence that would otherwise have been imposed.

On special circumstances, his Honour identified two competing considerations: the offender's genuine need for extended post-release supervision given his institutionalisation, against his history of committing offences while on conditional liberty. Giving weight to what his Honour described as a genuine desire by the offender to change, and his improved custodial behaviour since December 2016, the court made a finding of special circumstances in his favour.

To avoid double-counting, the sentence was not backdated to the date of arrest. Instead, it was backdated to 13 March 2017, reflecting partial accumulation with the parole balance already being served.

Orders Made

  • Non-parole period of two years, commencing 13 March 2017 and expiring 12 March 2019.
  • Head sentence of three and a half years.
  • Finding of special circumstances made.
  • Form 1 offence (possessing means of disguising face with intent to commit an indictable offence) taken into account.

Key Takeaways

  • Under the principle in Veen v The Queen [No 2], a sentencing court may treat a pattern of continued offending as evidence of a persistent attitude of disobedience toward the law, so long as the sentence remains proportionate to the objective seriousness of the conduct before it.
  • Committing an offence while on parole is a significant aggravating factor, but courts must be careful not to double-count that factor when also declining to fully backdate a sentence to the date of arrest.
  • A finding of special circumstances can be justified by an offender's institutionalisation, which may impair their capacity to cope with life outside custody and create a genuine need for extended parole supervision.
  • Where an offender has a history of breaching conditional liberty, the prospect of granting extended parole supervision involves a direct tension: it may provide necessary support upon release, but it also exposes the community to earlier release of someone who has previously reoffended on parole.
  • An early guilty plea at the first available opportunity attracted a 25 per cent reduction in the sentence that would otherwise have been imposed.

Legislation and Cases Referenced

Cases:
- Veen v The Queen [No 2] (1988) 164 CLR 465

Legislation:
- No specific legislation was cited in the judgment. The maximum penalty for both the substantive offence and the Form 1 offence was noted as seven years' imprisonment.