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District Court 23 May 2019

R v TAYLOR

[2019] NSWDC 163

Theft & propertyTraffic & driving
CRIMINAL SENTENCING RELEVANT FACTORS ON SENTENCE

Citation: R v Taylor [2019] NSWDC 163
Court: District Court of New South Wales
Date: 23 May 2019
Judge: Lerve DCJ

Background

The offender pleaded guilty at Wagga Wagga Local Court to one count of aggravated break, enter and commit a serious indictable offence (larceny), contrary to s 112(2) of the Crimes Act 1900. The offending occurred in the early hours of 13 December 2017, when the offender used a stolen white Holden Commodore station wagon as a battering ram against the front of a motorcycle parts and repair business on Edward Street, Wagga Wagga. He and an unknown co-offender then stole two KTM mini bikes and motorcycle goggles before fleeing on the stolen bikes.

The offending formed part of a broader pattern of criminal activity over the preceding days. The offender had earlier stolen the Commodore from a car park near a local RSL club, entered another vehicle without permission to steal a credit card, and committed a series of traffic offences, including driving while never licensed, using an unregistered and uninsured vehicle, and failing to stop for police. Following the break-in, the offender was arrested after a short foot pursuit and found in possession of housebreaking implements.

At sentencing, the offender asked the court to take into account seven additional matters under a Form 1 document (a mechanism under NSW law that allows related offences to be considered during sentencing for the principal offence, without separate convictions being recorded for those matters). Seven regulatory traffic offences were also before the court on a separate certificate.

  • What was the appropriate total sentence for the aggravated break, enter and steal offence, taking into account the seven Form 1 matters?
  • How should the standard non-parole period of five years (applicable to s 112(2) offences) guide the sentencing exercise?
  • Did special circumstances exist to justify a departure from the presumptive ratio between the non-parole period and the total sentence?
  • How should the seven regulatory traffic offences on the s 166 certificate be dealt with, given that a substantial term of imprisonment was inevitable?

Decision

Lerve DCJ identified the maximum penalty of 20 years imprisonment and the standard non-parole period of five years as two key reference points in the sentencing exercise. Her Honour confirmed that the applicable approach is a one-step instinctive synthesis, meaning the court weighs all relevant factors together rather than mechanically applying the standard non-parole period as a starting point.

The court assessed the principal offence as serious. The use of a stolen vehicle as a ram-raid tool, the involvement of a co-offender, and the commission of the offence in the early hours of the morning were all aggravating features. The Form 1 matters, while some were minor, included offences of sufficient gravity to have a meaningful upward impact on the sentence.

Her Honour found that special circumstances existed, justifying a non-parole period that was proportionally shorter than the default under the Crimes (Sentencing Procedure) Act 1999. The reasons for that finding were set out in the body of the judgment (which is not fully reproduced in the available text), but the outcome was a non-parole period representing approximately 57% of the total sentence, rather than the statutory default of 75%. The court recommended that any parole be conditioned on the offender undertaking substance abuse treatment and counselling, noting this was a matter entirely for the parole authorities.

The seven regulatory traffic offences on the s 166 certificate were dealt with under s 10A of the Crimes (Sentencing Procedure) Act 1999, which allows a court to record a conviction but impose no further penalty. The court considered this appropriate given that a substantial term of imprisonment was already being imposed for the principal offence.

Orders Made

  • The offender was convicted of the seven regulatory traffic matters on the s 166 certificate. Each matter was dealt with under s 10A of the Crimes (Sentencing Procedure) Act 1999, with no further penalty imposed.
  • For the aggravated break, enter and commit indictable offence (sequence 22), the offender was convicted and sentenced to a total term of 3 years and 9 months imprisonment.
  • Non-parole period: 2 years and 2 months, commencing 14 May 2018 and expiring 13 July 2020.
  • Parole period: 1 year and 7 months, commencing 14 July 2020 and expiring 13 February 2022.
  • The court recommended the offender be released to parole at the expiration of the non-parole period.
  • The court recommended that any parole be conditioned on the offender undertaking appropriate treatment and counselling for substance abuse (noting this remained a matter for the parole authorities).
  • Combined with a concurrent sentence already being served, the offender's actual custody was noted as running from 14 December 2017 to 13 July 2020 (approximately 2 years and 7 months).

Key Takeaways

  • Sentencing for offences carrying a standard non-parole period under the Crimes (Sentencing Procedure) Act 1999 involves a one-step instinctive synthesis, with the maximum penalty and the standard non-parole period serving as two principal guideposts rather than mathematical starting points.
  • Form 1 matters can have a meaningful upward influence on the head sentence, even where some of those matters are relatively minor, particularly when the number and cumulative nature of the offences is significant.
  • A finding of special circumstances permitted the court to set a non-parole period at approximately 57% of the total sentence, departing from the default 75% ratio under the legislation.
  • Under s 10A of the Crimes (Sentencing Procedure) Act 1999, a court may record a conviction for regulatory or minor offences while imposing no additional penalty, a course particularly appropriate where a substantial custodial sentence is already being imposed.
  • Recommendations about parole conditions, such as substance abuse treatment, are within a sentencing court's power to make, but remain matters for the parole authorities to implement and are not binding orders.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 112(2), 154A
- Criminal Procedure Act 1986 (NSW), s 166
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 37

Cases
- The Attorney General's Application Pursuant to s 37 of the Crimes (Sentencing Procedure) Act No. 1 of 2002 (2002) 56 NSWLR 146 (Guideline Judgment on Form 1 matters)
- R v Harris [2007] NSWCCA 130
- R v Merrin [2007] NSWCCA 255
- McGoldrick v R [2012] NSWCCA 7
- R v Clifford [2008] NSWCCA 190
- R v French [2010] NSWCCA 24
- Bugmy v The Queen [2013] HCA 37
- Beale v R [2015] NSWCCA 120