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District Court 29 August 2019

R v Connelly

[2019] NSWDC 444

Theft & propertyPublic order & justice offences
AGGREGATE SENTENCE

Citation: R v Connelly [2019] NSWDC 444
Court: District Court of New South Wales
Date: 29 August 2019
Judge: Mahony SC DCJ

Background

The offender, a 32-year-old Indigenous man from Coffs Harbour, was sentenced following a series of offences committed on the night of 26 October 2018. He broke into four shops within the Monterey Arcade by removing perspex skylights, stealing goods and cash and causing damage to the premises. Police observed him shortly after carrying items with price tags still attached, but he fled on arrest.

He was apprehended the following morning and remained in custody from 12 March 2019. The three principal offences were break and enter with commission of a serious indictable offence (larceny), damage to property, and escape from lawful custody. Four additional related charges were placed on a Form 1 (meaning the court took them into account in determining sentence without recording separate convictions), and two further charges were withdrawn and dismissed.

The offender had an extensive criminal history spanning 2001 to 2014, including approximately 32 break-and-enter offences, though there was a gap in offending between 2014 and 2017 during which he had custody of his young son. He pleaded guilty at the Local Court and was committed to the District Court for sentence.

  • What aggregate sentence was appropriate for three offences arising from a single course of criminal conduct, having regard to the principle of totality?
  • How should the offender's Indigenous background, troubled upbringing, and drug dependency bear on the assessment of his moral culpability?
  • Whether special circumstances existed under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 to justify departing from the standard ratio between the non-parole period and the head sentence.
  • What discount was appropriate for the early guilty plea?
  • How should the Form 1 matters be reflected in the sentence?

Decision

His Honour assessed the objective seriousness of the principal offence (break and enter with larceny, carrying a maximum of 14 years) as falling below the mid-range. The offences occurred on commercial premises, no occupants were present, and the serious indictable offences involved were larcenies rather than more serious conduct. The degree of damage and planning were noted as aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999, while the absence of injury, the early plea, and the offender's personal circumstances operated in mitigation.

The court applied the principles from the guideline judgment in R v Ponfield and drew on the Court of Criminal Appeal's reasoning in R v Cahyadi regarding the concurrent or cumulative structuring of sentences. Mahony SC DCJ concluded that the offending constituted a single course of criminal conduct, and that an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 was appropriate, with the sentence for any one offence capable of comprehending the criminality of the others.

The court accepted that the offender's Indigeneity and its attendant disadvantages, including his broken family background, early exposure to drugs and alcohol, and limited education, were relevant to the assessment of moral culpability, consistent with Bugmy v R (2013) 302 ALR 192. His three-year gap in serious offending, attributed to his custody of his son, was treated as a genuine indicator of some capacity for rehabilitation. His relapse into drug use after reconnecting with former associates was also taken into account.

Special circumstances were found to exist under s 44(2), given the offender's need for an extended period of supervision and support with drug treatment and relapse prevention on his return to the community. This justified departing from the statutory ratio between the non-parole period and the balance of term, resulting in an equal split between the two components.

Orders Made

  • Convicted of break and enter with commission of a serious indictable offence (larceny) at Popsgood Skate Shop, contrary to s 112(1)(a) of the Crimes Act 1900.
  • Convicted of damage to property at Monterey Arcade, contrary to s 195(1)(a) of the Crimes Act 1900.
  • Convicted of escape from lawful custody.
  • Sentenced by way of aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 to a total term of 20 months.
  • Non-parole period of 10 months, commencing 12 March 2019 and expiring 11 January 2020.
  • Balance of term of 10 months, commencing 12 January 2020 and expiring 11 November 2020.
  • Sequences 6 and 10 withdrawn and dismissed.
  • Form 1 matters taken into account in imposing the aggregate sentence.

Key Takeaways

  • The District Court applied the totality principle to structure an aggregate sentence where multiple offences arose from a single episode of criminal conduct, drawing on R v Cahyadi for the proposition that sentences should be concurrent where one sentence can adequately reflect the combined criminality.
  • Under Bugmy v R, an offender's Indigenous background and the disadvantage flowing from it remain relevant to the assessment of moral culpability, even where the offender has an extensive prior record.
  • A finding of special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 permitted the court to equalise the non-parole period and the balance of term, extending the supervisory tail to address ongoing drug-rehabilitation needs.
  • Form 1 charges are not separately convicted or sentenced, but the sentencing court is required to certify that they have been taken into account in arriving at the head sentence.
  • An early guilty plea entered in the Local Court is capable of attracting a meaningful discount and may also be treated as evidence of contrition, relevant to the overall sentencing assessment.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 112(1)(a), 114(1), 195(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2), 21A(3), 44(2), 53A
- Criminal Procedure Act 1986 (NSW), s 166

Cases
- Bugmy v R (2013) 302 ALR 192 (High Court)
- R v Cahyadi [2007] NSWCCA 1
- R v Ponfield [1999] NSWCCA 435
- R v Van Ryn [2016] NSWCCA 1