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District Court 12 June 2019

R v Vincent

[2019] NSWDC 343

Assault & violenceTheft & property
PAROLE PERIOD — STANDARD NON PAROLE PERIOD SENTENCING — NON

Citation: R v Vincent [2019] NSWDC 343
Court: District Court of NSW
Date: 12 June 2019
Judge: Bennett SC DCJ

Background

The offender pleaded guilty in the Local Court to a charge of aggravated break, enter and steal in circumstances of aggravation, namely that he knew a person was present on the premises. The offence occurred at a Department of Housing townhouse in Bidwill on the night of 14 to 15 September 2018. The victim, a 60-year-old woman living alone who was visually impaired and had a paralysed vocal cord, was watching television in her lounge room when the offender entered through an unlocked laundry window after removing the flyscreen.

Once inside, the offender sat on the floor in front of the victim. When she attempted to leave through the front door, he grabbed her wrist and threatened to kill her. She managed to pull free, ran to a neighbour's home, and contacted police. Officers located the offender a short distance away. Her handbag, taken from her bedroom, was later recovered nearby, though a bank card, taxi vouchers, and an Opal card were not found.

At the time of the offence the offender was on parole for earlier offending, which he had already breached. A Form 1 offence of common assault under s 61 of the Crimes Act 1900 (relating to the wrist grab and threat) was asked to be taken into account on sentencing.

  • Where on the scale of objective seriousness did the offence fall, and what role should the standard non-parole period play in the sentencing exercise?
  • How should the court apply the De Simoni principle when considering the victim's injuries in the context of the Form 1 assault charge?
  • What was the appropriate commencement date for the sentence, given the offender had served a portion of a parole revocation period between arrest and sentencing?
  • Whether special circumstances existed justifying a departure from the standard ratio between non-parole period and head sentence.

Decision

Objective seriousness and the standard non-parole period. The maximum penalty for aggravated break, enter and steal in circumstances of aggravation is 20 years' imprisonment, with a standard non-parole period of five years. Drawing on Muldrock v Queen and Tepania v Queen, Bennett SC DCJ confirmed that the standard non-parole period is a guiding factor, not a fixed benchmark, and that sentencing remains a synthesising exercise rather than an arithmetical one. The court placed the offence below the mid-range of objective seriousness, roughly halfway between the low end and mid-range, having regard to the nature of the entry, the limited value of property taken, and the circumstances of the threat.

The De Simoni principle and victim injury. The victim suffered a wrist injury requiring a splint and bandaging for months, as described in her victim impact statement. The court acknowledged this injury but declined to treat it as an aggravating factor when sentencing on the principal offence. Because the offender was not charged with assault occasioning actual bodily harm, elevating the seriousness of the sentence on that basis would have offended the De Simoni principle, which prohibits a court from sentencing an offender more harshly for a more serious offence of which he has not been convicted.

Commencement date. The offender was arrested on 15 September 2018 and, following parole revocation, served the balance of that parole until 19 January 2019. Applying the approach in Callaghan v Queen, both parties agreed there should be a degree of accumulation and concurrence between the parole balance and the new sentence. The court set the commencement date as 15 November 2018, which appropriately reflected the overlap period.

Sentence structure and special circumstances. The court imposed an overall sentence of four years' imprisonment with a non-parole period of two years and three months, commencing 15 November 2018. A discount of 25% (slightly more in practice to achieve clean year-based figures) was applied for the guilty plea. Special circumstances were found, principally the risk of institutionalisation and the need for a longer supervised parole period following the offender's participation in the drug rehabilitation programme at Parklea Correctional Centre. The offender was referred to that programme pursuant to the Drug Court Act 1998.

Orders Made

  • The offender was convicted of aggravated break, enter and steal in the circumstance of aggravation that a person was on the premises.
  • Sentenced to imprisonment for four years, commencing 15 November 2018 and expiring 14 November 2022.
  • Non-parole period of two years and three months, commencing 15 November 2018 and expiring 14 February 2021.
  • Parole period of one year and nine months, commencing 15 February 2021 and expiring 14 November 2022.
  • Form 1 offence (common assault, s 61 Crimes Act 1900) certified as taken into account.
  • Referral to the Parklea Correctional Centre drug rehabilitation programme pursuant to the Drug Court Act 1998.

Key Takeaways

  • The District Court confirmed that the standard non-parole period is a factor to be weighed alongside all objective and subjective circumstances; it does not operate as a mathematical baseline from which a percentage adjustment is calculated when the offence falls below mid-range.
  • Under the De Simoni principle, a sentencing court cannot use the victim's physical injury to increase the severity of a sentence when the offender has not been charged with the more serious offence that injury would constitute.
  • Where an offender has served a period in custody following parole revocation that overlaps with the period before sentencing, the court retains a discretion under Callaghan v Queen to fix a commencement date that fairly accounts for that custody without full concurrence or full accumulation.
  • Special circumstances justifying a longer parole tail can arise from the combination of institutionalisation risk and the practical need for structured post-release supervision after a custodial rehabilitation programme.
  • A guilty plea discount of approximately 25% remained applicable even where the plea was entered in the Local Court rather than the higher court conducting sentencing.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61 (common assault)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Part 4 Division 1A (standard non-parole periods)
- Drug Court Act 1998 (NSW)

Cases
- The Queen v De Simoni (1981) HCA 31
- Muldrock v Queen (2011) HCA 39
- Markarian v Queen (2005) HCA 25
- Tepania v Queen (2018) NSWCCA 247
- Callaghan v Queen (2006) NSWCCA 58
- Queen v Borkowski (2009) NSWCCA 102
- Queen v Mooney (2016) NSWCCA 231
- Ponfield & Ors (1999) 48 NSWLR 327