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District Court 5 April 2019

R v BURNS

[2019] NSWDC 162

Assault & violenceTheft & propertyTraffic & drivingPublic order & justice offences
POLICE PURSUIT MULTIPLE BREAK ENTER OFFENCES ACCESSORY TO ARMED ROBBERY FORM 1 MATTERS A LIFE OF FEW ADVANTAGES MULTIPLE VICTIMS

Citation: R v Burns [2019] NSWDC 162
Court: District Court of New South Wales
Date: 5 April 2019
Judge: Haesler SC DCJ

Background

The offender, a young man born in 1996, appeared for sentencing on 16 charges arising from a concentrated period of offending across the Illawarra and South Coast regions between 23 October and 14 November 2017. The charges included multiple aggravated break, enter and steal offences (in company), receiving stolen property, obtaining property by deception, accessory after the fact to armed robbery, police pursuit, and driving a stolen conveyance. Eight further matters were placed on a Form 1 (meaning the court took them into account without recording additional convictions).

The offender had a troubled background. His mother faced significant personal difficulties and his father had spent, and continued to spend, time in custody. He had first appeared before the Children's Court at age 15 or 16 and had been in and out of juvenile detention and adult custody since 2015. At the time of this offending he was on parole, having been released in October 2017 on condition that he remain in Wagga. He instead came to Wollongong, resumed methylamphetamine use, and began offending almost immediately.

His parole was revoked following his arrest on 14 November 2017. He had been in custody since that date. A separate Local Court assault matter, committed during the same period, had been dealt with by way of a four-month sentence running from 1 May to 31 August 2018.

  • What aggregate sentence appropriately reflected the totality of the offending, having regard to accumulation, concurrence and the totality principle?
  • How should the offender's deprived background, relying on Bugmy v The Queen, be weighed in mitigation?
  • Whether special circumstances existed justifying a departure from the standard non-parole period ratio, given the offender's age, background and rehabilitation prospects?
  • How the sentence should be backdated, particularly given time already served on revoked parole and the separately imposed Local Court sentence?
  • What weight should be given to the guilty plea and the offending having been committed while on parole?

Decision

Haesler SC DCJ imposed an aggregate sentence of seven years imprisonment with a non-parole period of four years and two months, commencing 14 March 2018 and expiring 13 May 2022. The balance of sentence of two years and ten months runs from 14 May 2022 to 13 March 2025.

The court applied the principles in Bugmy v The Queen, acknowledging that the offender's background of profound deprivation, including an absent and imprisoned father, a mother with significant difficulties, and an early entry into the justice system, reduced his moral culpability to a degree. However, his Honour observed that the sheer number of victims and the offender's apparent indifference to detection (evidenced, for example, by connecting his phone to a stolen vehicle's Bluetooth under the name "Burnsy" and having stolen goods delivered to his home address) remained significant aggravating features.

The court found that special circumstances existed, warranting a larger than usual proportion of the sentence as a parole period, given the offender's youth, his history of institutionalisation, his drug dependency, and the importance of supervision and rehabilitation on release. This finding is reflected in the ratio between the non-parole period and the total term. The fact that the offending occurred while on parole was treated as a serious aggravating matter.

His Honour carefully worked through each indicative sentence before arriving at the aggregate figure, applying the totality principle to ensure the overall sentence was just and appropriate rather than simply the mechanical sum of individual terms. The sentence was backdated four months after the offender returned into custody, accommodating the period served on the revoked parole.

Orders Made

  • Aggregate sentence of seven years imprisonment.
  • Non-parole period of four years and two months, commencing 14 March 2018 and expiring 13 May 2022.
  • Balance of sentence (two years and ten months) to run from 14 May 2022 to 13 March 2025.
  • Automatic two-year driving disqualification for the police pursuit offence, to commence upon release from custody.
  • Form 1 matters taken into account without separate conviction or sentence.

Key Takeaways

  • The District Court applied Bugmy v The Queen to confirm that a severe background of deprivation retains mitigating weight even for an adult offender, though it does not override the gravity of prolific, multi-victim offending.
  • A finding of special circumstances under the sentencing framework can justify extending the parole portion of a sentence beyond the statutory norm, particularly where the offender is young, has spent significant time institutionalised, and has substantial rehabilitation needs.
  • Where an offender faces a large number of charges arising from a discrete period of offending, the totality principle requires the court to step back from the sum of individual sentences and impose an aggregate term that is proportionate to the overall criminality.
  • Offending committed while on parole is a significant aggravating factor; the revocation of parole and service of the balance of that period must be accounted for when backdating a subsequent sentence.
  • Indicative sentences for individual counts serve as the analytical foundation for an aggregate sentence, allowing the appellate court and parties to understand the reasoning, even though only the aggregate term is formally imposed.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): ss 51B(1), 97(1), 112(1)(a), 112(2), 113(2), 154A(1)(b), 188(1), 192E(1)(a), 347, 350
- Criminal Procedure Act 1986 (NSW): s 166

Cases
- Bugmy v The Queen (2013) 249 CLR 571
- Callaghan v R [2006] NSWCCA 58
- Green v The Queen (2011) 244 CLR 462
- JM v R [2012] NSWCCA 83
- MAK v R [2006] NSWCCA 381
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Mill v The Queen (1998) 166 CLR 59
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Ponfield [1999] 48 NSWLR 327
- R v Clinch (1994) 72 A Crim R 301
- R v Elliott and Blessington [2006] NSWCCA 305
- Simpson [2001] 53 NSWLR 704
- Slade v The Queen [2005] NZCA 19