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District Court 11 May 2018

R v Dane Erceg

[2018] NSWDC 121

DrugsTheft & propertyPublic order & justice offences
SUPPLY PROHIBITED DRUGS RECEIVE STOLEN PROPERTY ESCAPE POLICE CUSTODY AGGREGATE SENTENCE SPECIAL CIRCUMSTANCES

Citation: R v Dane Erceg [2018] NSWDC 121
Court: District Court of New South Wales
Date: 11 May 2018
Judge: Mahony SC DCJ

Background

The offender, a 40-year-old man with an extensive criminal history dating back to the Children's Court at age 14, appeared for sentencing on three principal offences committed on two separate occasions. The first two offences arose from events on 6 March 2015: receiving stolen property valued above $5,000 (a television, laptops, and related items taken in a break-in at Bondi Road, Bondi) and escaping police custody by fleeing into residential premises at Bellevue Hill when officers attempted to arrest him. A related offence of resisting an officer in the execution of duty was placed on a Form 1 to be taken into account on sentence.

The third and most serious offence occurred on 28 December 2016, when the offender was observed as a passenger in a speeding vehicle in Bellevue Hill. He fled on foot from police, discarding plastic bags containing 27.75 grams of methylamphetamine at 78% purity, with a potential street value of between $12,400 and $36,850 if sold by the point. He was not arrested until 5 April 2017.

The sentencing hearing also involved a Severity Appeal against a Local Court larceny sentence, the call-up of eight bonds (four under section 9 and four under section 12 of the Crimes (Sentencing Procedure) Act 1999) that had been imposed in November 2014, and a related offence of goods in custody under a section 166 certificate.

  • What aggregate sentence was appropriate under section 53A of the Crimes (Sentencing Procedure) Act 1999 for the three principal offences, having regard to the totality principle?
  • Whether special circumstances existed justifying a departure from the standard ratio between non-parole period and balance of term.
  • How to treat the 455 days of pre-sentence custody served across two separate periods.
  • How to address the eight bond breaches called up alongside the principal offences.
  • Whether the Local Court Severity Appeal in respect of the December 2016 larceny offence should succeed, and if so, the extent of any concurrency with the drug supply sentence.
  • How to deal with the related offence of goods in custody under the section 166 certificate.

Decision

His Honour sentenced the offender to an aggregate term of 3 years and 6 months imprisonment under section 53A of the Crimes (Sentencing Procedure) Act 1999, covering the three principal offences. The non-parole period was set at 2 years and 3 months, representing a ratio that reflected a finding of special circumstances. Special circumstances were identified on account of the offender's lengthy criminal history, his significant periods in custody, and the need for an extended period of supervision on release to address rehabilitation and to reduce the risk of reoffending.

The offender's 455 days of pre-sentence custody (across two periods: 13 May 2015 to 11 September 2015, and 5 April 2017 to 5 March 2018) were taken into account by backdating the commencement of the aggregate sentence to 3 February 2017. This approach reflected the court's obligation under the relevant sentencing legislation to ensure the offender received the benefit of time already served.

On the Severity Appeal concerning the Local Court larceny sentence of 8 months imprisonment (with a 6-month non-parole period), the District Court found no error in the Magistrate's sentencing. However, because the larceny offence occurred close in time to the drug supply offence, His Honour backdated that sentence to commence on 3 October 2017 to create some concurrency. The related goods-in-custody offence received a fixed term of 6 months, served concurrently, commencing 3 February 2017. Separate orders were made on the eight bond call-ups.

Orders Made

  • The offender was convicted of: escape police custody; receiving stolen property (value exceeding $5,000) under section 188 of the Crimes Act 1900; and supply of a prohibited drug greater than the indictable quantity (27.75g methylamphetamine) under section 25(1) of the Drug Misuse and Trafficking Act 1985.
  • An aggregate sentence of 3 years and 6 months was imposed under section 53A of the Crimes (Sentencing Procedure) Act 1999, with a non-parole period of 2 years and 3 months commencing 3 February 2017 and expiring 2 May 2019; the balance of term of 15 months to run from 3 May 2019 to 2 August 2020.
  • The offender was convicted of goods in custody (sequence 4 on the section 166 certificate) and sentenced to a fixed term of 6 months commencing 3 February 2017 and expiring 2 August 2017, served concurrently.
  • The two back-up offences on the section 166 certificate (sequences 6 and 7) were withdrawn and dismissed.
  • The resist officer offence (section 58, Crimes Act 1900) was taken into account on a Form 1.
  • Additional orders were made in respect of eight bond call-up matters (four section 9 bonds and four section 12 bonds).

Key Takeaways

  • The District Court applied the aggregate sentencing regime under section 53A of the Crimes (Sentencing Procedure) Act 1999 across three offences committed on two separate occasions, with totality calibrated to reflect the overall criminality without crushing the offender's prospects of rehabilitation.
  • A finding of special circumstances justified extending the balance of term beyond the proportion that would otherwise apply, given the offender's extensive criminal record, his time already in custody, and the rehabilitation and supervision considerations identified by the court.
  • Pre-sentence custody served across two non-consecutive periods was accommodated by backdating the commencement of the aggregate sentence rather than by formal calculation at the point of pronouncement.
  • Where a Local Court larceny offence was temporally proximate to a principal indictable offence being sentenced in the District Court, the sentencing judge adjusted the commencement date of the Local Court sentence to create partial concurrency, even though no error in the original sentence was identified.
  • An extensive criminal history, spanning from youth to middle age and including prior drug, dishonesty, and violence matters, was treated as an aggravating factor going to the risk of reoffending, consistent with the principles in Veen v R [No. 2], while not being permitted to drive a sentence disproportionate to the objective gravity of the current offences.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), sections 58, 117, 188
- Crimes (Sentencing Procedure) Act 1999 (NSW), sections 9, 12, 53A
- Criminal Procedure Act 1986 (NSW), section 166
- Drug Misuse and Trafficking Act 1985 (NSW), section 25(1)

Cases
- Berryman v R [2017] NSWCCA 297
- JM v R [2014] NSWCCA 297
- R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41
- R v Van Ryn [2016] NSWCCA 1
- Veen v R [No. 2] (1988) 164 CLR 465