Citation: R v Bray [2019] NSWDC 274
Court: District Court of New South Wales
Date: 20 May 2019
Judge: Bennett SC DCJ
Background
The offender pleaded guilty in the Local Court to two offences and was committed to the District Court for sentencing. The primary offence was aggravated break and enter with the intent to commit a serious indictable offence (larceny), aggravated by the fact that the offender knew persons were present in the dwelling. This offence carries a maximum of 20 years imprisonment and a standard non-parole period of five years.
The second offence was dishonestly obtaining property by deception, carrying a maximum of ten years imprisonment with no standard non-parole period. The offender had used a credit card stolen during the break and enter to make purchases at retail outlets, use taxi services, and visit a brothel.
The offender also asked the court to take into account 19 additional offences on a Form 1, including 17 counts of dishonestly obtaining property by deception, one count of larceny, and one count of possessing implements to enter and drive a conveyance. He had an extensive criminal history and was, at the time of the offending, on bail, on parole, and subject to a conditional liberty bond.
Legal Issues
- Where the primary offence falls on the scale of objective seriousness, by reference to the standard non-parole period of five years under the Crimes (Sentencing Procedure) Act 1999
- How the 19 Form 1 offences should affect the sentence imposed for the principal offence
- What weight to give subjective factors, including the offender's background, mental health, substance dependence, and demonstrated remorse
- Whether special circumstances existed justifying a departure from the standard ratio between the non-parole period and the balance of sentence
- What discount applied for the guilty plea
Decision
The court assessed the aggravated break and enter offence as falling below mid-range on the scale of objective seriousness, placing it at a point above halfway between the low point and mid-range. This placement reflected the nature of the serious indictable offence committed (larceny), which sits at the lower end of the range of offences that can ground such a charge. The second offence of dishonestly obtaining property by deception was assessed as falling well below mid-range.
Bennett SC DCJ emphasised that the standard non-parole period functions as a legislative guidepost rather than a fixed benchmark, and that sentencing must involve an intuitive synthesis rather than an arithmetical or staged calculation. The fact that the offender was on conditional liberty in three concurrent ways at the time of offending, and held an extensive prior record, did not increase the objective gravity of the offending itself, but remained relevant to the overall sentencing assessment.
The court found a strong basis for special circumstances, given the offender's significant rehabilitative needs, including his substance dependence. A 25 percent discount was applied across both offences to reflect the utility of the guilty plea and the offender's cooperation with police, including participation in an interview and making admissions. The court also accepted that the offender had demonstrated genuine contrition and remorse.
The 19 Form 1 offences were taken into account against the principal offence, resulting in an increase to the sentence that would otherwise have applied. The court noted that this approach reflects the need for personal deterrence and community entitlement to retribution for the full extent of the offending, while acknowledging that the offender gained a significant benefit by avoiding separate punishment for each Form 1 matter.
Orders Made
- Offender convicted of aggravated break and enter and commit a serious indictable offence, with an indicative sentence of 3 years and 9 months imprisonment
- Offender convicted of dishonestly obtaining property by deception, with an indicative sentence of 12 months imprisonment
- Aggregate sentence of 4 years and 3 months imprisonment, commencing 3 December 2018
- Non-parole period of 2 years and 3 months, expiring 2 March 2021
- Parole period expiring 2 March 2023
- Form 1 offences certified and taken into account
- Offender referred to the Drug Court to assess eligibility for the Drug Treatment Program at Parklea
Key Takeaways
- The District Court confirmed that, following Muldrock v The Queen [2011] HCA 39, the standard non-parole period operates as a legislative guidepost rather than a mandatory benchmark, and must be synthesised with all other relevant factors rather than applied arithmetically.
- Placing an offence below mid-range on the scale of objective seriousness does not mean the non-parole period is simply calculated as a proportional fraction of the standard non-parole period; the assessment remains a holistic exercise.
- Where an offender requests that Form 1 offences be taken into account, the sentence for the principal offence must be increased beyond a merely marginal extent, reflecting the need for personal deterrence and community retribution for the totality of the offending.
- Conditional liberty at the time of offending (here, bail, parole, and a section 9 bond simultaneously) does not itself increase the objective gravity of the principal offence, though it remains part of the overall sentencing matrix.
- A strong basis for special circumstances, grounded in the offender's rehabilitative needs, can justify adjusting the ratio between the non-parole period and the balance of the sentence, particularly where the offender demonstrates genuine remorse and cooperates with authorities.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 112(2), 192E(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 9, 21A, 22, 37, 54A, 54B; Part 4 Division 1A
Cases
- Attorney General's Application under s 37 Crimes (Sentencing Procedure) Act 1999, No. 1 of 2002 [2002] NSWCCA 518
- Bugmy v The Queen [2013] HCA 37
- Callaghan v The Queen [2006] NSWCCA 58
- Fernando (1992) 76 A Crim R 58
- Markarian v The Queen [2005] HCA 25
- Muldrock v The Queen [2011] HCA 39