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District Court 16 May 2019

R v Holman

[2019] NSWDC 292

Assault & violenceTheft & property
SENTENCING PARTICULAR OFFENCES PROPERTY OFFENCES PARTICULAR OFFENCES VIOLENCE OFFENCES SUBJECTIVE CONSIDERATIONS ON SENTENCE

Citation: R v Holman [2019] NSWDC 292
Court: District Court of New South Wales
Date: 16 May 2019
Judge: Payne DCJ

Background

The offender, a 26-year-old man with a prior criminal record, appeared before the District Court for sentence on multiple offences arising from a late-night break-in at a residential property in Wingham, New South Wales. Acting with a co-offender, he broke into a locked shed and stole two high-value motorcycles, worth a combined $23,500. The offending occurred while he was on parole, to which he had returned after a difficult period marked by relapse into methamphetamine ("ice") use following the death of his mother.

When one of the victims (V1) confronted the offender in the street, a prolonged and violent struggle ensued. The offender struck V1 repeatedly with a motorcycle helmet and with his fists, knocking him to the ground multiple times. V1 sustained a nasal fracture, chipped teeth, lacerations, and multiple grazes. When V1's wife (V2) intervened, the offender punched her in the face, causing bleeding in her eye and the tearing away of a fingernail.

The offender pleaded guilty and was committed for sentence from Forster Local Court. He also asked the court to take into account a further assault on V2 via a Form 1 document (a procedure under NSW law allowing related offences to be considered at sentencing without imposing a separate penalty).

  • What was the appropriate aggregate sentence for the principal offences, including the standard non-parole period applicable to the aggravated break and enter charge?
  • Whether the utilitarian value of the guilty plea warranted a 25 percent discount on sentence.
  • Whether genuine remorse was established for the purposes of the mitigating factors under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999.
  • Whether special circumstances existed to justify extending the parole period beyond the statutory norm, and whether an Intensive Correction Order (ICO) was appropriate.
  • What licence disqualification period applied to the drive-whilst-disqualified offence.

Decision

Payne DCJ accepted the guilty plea discount of 25 percent on utilitarian grounds. His Honour also accepted remorse as a mitigating factor, drawing on a letter written by the offender, a psychological report, and a Sentencing Assessment Report. Each of those sources reflected genuine acceptance of responsibility and acknowledgment of harm caused to the victims.

His Honour recognised several subjective factors in the offender's favour: a difficult and dysfunctional upbringing, the recent death of his mother, his relationship with a partner and child, and a drug addiction that drove the reoffending. The psychological report also identified reasonable prospects of rehabilitation, a finding the court accepted. These matters were weighed against the objective seriousness of the offending, the prior record, the fact that the offending occurred on parole, and the need for general deterrence.

Special circumstances were found to exist, specifically the offender's need for ongoing drug treatment and his rehabilitation prospects. This finding justified extending the parole component of the sentence beyond the one-third proportion that the legislation ordinarily produces, resulting in an allowance of approximately 14 months beyond the non-parole period. Despite the aggregate sentence of three years bringing an ICO within the legislative range, his Honour rejected that option on the basis that the offending was too serious for any alternative to full-time custody.

The court also made a strong recommendation on the warrant that the offender receive proper professional medical treatment for seizures he had experienced, including one on the day before sentencing.

Orders Made

  • Sequence 4 (aggravated break, enter and steal, with Form 1 assault attached): indicative sentence of 3 years 6 months, reduced by 25% to 2 years 7 months; indicative non-parole period of 11 months.
  • Sequence 5 (assault occasioning actual bodily harm, V1): indicative sentence of 3 years, reduced by 25% to 2 years 3 months.
  • Sequence 2 (drive whilst disqualified, s 166 certificate): indicative sentence of 4 months, reduced by 25% to 3 months.
  • Aggregate sentence: 3 years, commencing 2 October 2018 and expiring 1 October 2021.
  • Aggregate non-parole period: 13 months, commencing 2 October 2018 and expiring 1 November 2019.
  • Special circumstances allowance: approximately 14 months.
  • Licence disqualification: 9 months for the drive-whilst-disqualified offence.
  • Intensive Correction Order rejected; full-time custody imposed.
  • Court recommended in the strongest terms that the prisoner receive professional medical treatment for seizures.

Key Takeaways

  • The District Court confirmed that genuine remorse requires evidence of both accepted responsibility and acknowledgment of harm, consistent with s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999; a letter from the offender combined with corroborating psychological and assessment reports was sufficient to establish this.
  • Special circumstances sufficient to extend the parole period were established where the offender had a diagnosed drug addiction requiring treatment and demonstrated reasonable prospects of rehabilitation, even where the offending was serious and occurred while on parole.
  • An aggregate sentence falling within the legislative threshold for an ICO does not automatically make that order available; where the objective seriousness of the offending is sufficiently high, full-time custody remains appropriate.
  • Reoffending while on parole and the need for general deterrence carry significant weight in sentencing for aggravated break and enter, even where there are compelling subjective matters in an offender's favour.
  • Under the standard non-parole period regime, an indicative non-parole period must be stated for the principal offence even within an aggregate sentencing structure under s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 59(1), 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(i), 53A(2)(b)
- Road Transport Act 2013 (NSW), s 54(1)(a)

Cases:
- R v Clark [2013] NSWCCA 260