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District Court 21 June 2018

R v Williams

[2018] NSWDC 526

Assault & violenceTheft & propertyFirearms & weapons

Citation: R v Williams [2018] NSWDC 526
Court: District Court of NSW
Date: 21 June 2018
Judge: Buscombe DCJ

Background

The offender, a young man with a prior criminal record and borderline intellectual functioning, pleaded guilty in the Local Court to two offences arising from events at a backpacker hostel in Griffith on 26 and 27 June 2017. He adhered to those pleas in the District Court.

The first offence involved breaking and entering the common room of the Shearers' Quarters Backpackers' hostel and assaulting a sleeping British backpacker with a knife, demanding his wallet and threatening to stab him. The offender also forced entry to the hostel office and attempted to remove bolted safes. A Form 1 larceny (relating to items taken in the safes) was also taken into account on sentence.

The second offence concerned the offender taking and driving a vehicle belonging to a French backpacker who was also staying at the hostel. The car had been left in the car park with keys in the ignition the night before, in anticipation of a mechanic's visit. The vehicle was recovered two days later without apparent damage.

  • What was the objective seriousness of each offence?
  • Whether the offence was aggravated by being committed at the victim's home, given that the hostel was his temporary accommodation
  • Whether the presence of an unidentified male companion established the "in company" aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act
  • How the offender's age, limited intellect, and prior record should be weighed in mitigation and for specific deterrence
  • How the sentences for the two offences should be structured, including questions of accumulation, concurrency, and totality

Decision

Objective seriousness. Buscombe DCJ assessed the take and drive offence as towards the low end of the range. The taking was opportunistic, the vehicle was not damaged, and it was recovered within two days. The aggravated break and enter was treated as considerably more serious. The offender returned to the hostel armed with a knife, threatened to stab the victim, smashed an office window, forced open a door, and effectively detained the victim for a period, though his Honour was careful not to sentence for a detention offence.

Aggravating factors. His Honour accepted the Crown's submission that the hostel constituted the victim's home for the purposes of the home-of-victim aggravating factor under s 21A, relying on case law confirming that temporary accommodation can satisfy that provision. However, the court declined to find the "in company" aggravating factor proved beyond reasonable doubt. The facts provided very little evidence of any interaction between the unknown companion and the victim during the break and enter, and the court applied the reasoning in White v R [2016] NSWCCA 190 in reaching that conclusion.

Subjective considerations. The offender received a discount for his early guilty pleas. His Honour took account of his young age, his borderline intellectual functioning (drawing on the principles in Bugmy v R), and a background of disadvantage. The prior criminal record meant some element of specific deterrence remained appropriate. The court reduced the weight given to general deterrence because of the offender's limited intellect.

Totality and aggregate sentence. His Honour imposed an aggregate sentence, identifying indicative sentences for each offence. Some accumulation was warranted because there were two distinct offences involving different victims, but the accumulation was limited given the offences formed part of a single episode of criminality.

Orders Made

  • Conviction recorded on both offences
  • Indicative sentence for the take and drive conveyance offence: 12 months imprisonment
  • Indicative sentence for the aggravated break and enter offence: 3 years imprisonment, with an indicative non-parole period of 2 years
  • Aggregate sentence: 3 years and 6 months imprisonment
  • Aggregate non-parole period: 2 years and 4 months imprisonment
  • Sentence commenced: 17 July 2017; expires 16 January 2021
  • Non-parole period expires: 16 November 2019 (earliest parole eligibility date)

Key Takeaways

  • A backpacker hostel can constitute the "home of the victim" for the purposes of the aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act, even where the victim's occupation is temporary.
  • The "in company" aggravating factor requires proof beyond reasonable doubt that the companion's presence materially contributed to the offending dynamic with the victim. A companion whose role in the relevant offence is peripheral or undocumented in the agreed facts may not satisfy that standard.
  • Where a young offender has borderline intellectual functioning, the District Court held that the weight given to general deterrence may be reduced, consistent with the High Court's guidance in Bugmy v R.
  • Accumulation of sentences across multiple offences arising from a single episode remains appropriate where different victims are involved, but the totality principle operates to limit the extent of that accumulation.
  • Early guilty pleas entered in the Local Court and maintained in the District Court were recognised as a mitigating factor warranting a sentencing discount.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 112(2), 154A(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A

Cases
- BP v R [2010] NSWCCA 159
- Bugmy v R (2013) 249 CLR 571
- Bullock v R [2016] NSWCCA (full citation not provided in the judgment)
- Johnson [2016] NSWCCA 286
- White v R [2016] NSWCCA 190
- Muldock v R (2011) 244 CLR 120