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District Court 15 August 2019

R v SCOTT

[2019] NSWDC 526

Assault & violenceTheft & propertyFirearms & weaponsDomestic & family violence
CRIME GUILTY PLEA DURING TRIAL MULTIPLE INCIDENTS. SENTENCING RELEVANT FACTORS ON SENTENCE LATE GUILTY PLEA MULTIPLE INCIDENTS

Citation: R v Scott [2019] NSWDC 526
Court: District Court of New South Wales
Date: 15 August 2019
Judge: Haesler SC DCJ

Background

The offender pleaded guilty to multiple serious offences arising from three separate incidents in late 2017. The first occurred on 15 October 2017, when he repeatedly attended his former partner's home in breach of an Apprehended Personal Violence Order, threatening her, damaging property, and spitting in her face. His young children were present throughout.

The second and third incidents occurred on 9 November 2017. The offender drove to a home in Cringila and pointed a shortened firearm at an acquaintance's face. Later that same evening, he drove with two others to a residential property in Woonona, forced his way to the back of the home uninvited, confronted the family present, pointed a firearm at two of them, and his associate produced a knife and demanded money said to be owed by a family member. A physical struggle over the firearm ensued, and as the offender and his associate retreated, the weapon discharged.

The offender initially contested the Woonona charges at trial, claiming he had no firearm and that the family had initiated the confrontation. On day three of the trial, the court admitted photographs and video downloaded from his seized phone showing him in possession of a shortened firearm. He then sought time to reconsider his position and entered guilty pleas on day four, with further pleas to the domestic violence offences following shortly after.

  • What weight should be given to guilty pleas entered partway through trial, after adverse evidence was admitted?
  • How should multiple sentences across separate and distinct incidents be structured, having regard to accumulation, concurrence, and the totality principle?
  • Whether special circumstances existed warranting a departure from the standard non-parole period ratio, given the need for rehabilitation and supervision on release.
  • How to weigh the offender's significant criminal history, deprived background, and early drug use against the objective seriousness of the offending.
  • How to treat the domestic violence incident and AVO breach, including the aggravating feature of offending committed in breach of court orders and in the presence of children.

Decision

His Honour found the Woonona incident to be the most serious of the offences. Armed strangers forcing entry onto a family's property at night, in company, with a shortened firearm and a knife, and then demanding money, represented a significant intrusion on the victims' safety and sense of security in their own home. The physical struggle over the firearm and its subsequent discharge further elevated the seriousness of that incident.

The domestic violence offending was treated as a distinct and serious matter. Breaching an Apprehended Personal Violence Order was identified as a significant aggravating feature. Attending the former partner's home repeatedly over the course of a day and night, threatening and intimidating her with their children present, and ultimately forcing entry, demonstrated a serious disregard for both the order and the welfare of his family.

On the question of the guilty plea, His Honour afforded only limited discount. The pleas came after the trial had commenced, after adverse evidence was admitted, and after the offender had maintained a false account during the trial itself. A greater discount would have been available had the pleas been entered at an earlier stage.

His Honour found special circumstances, noting the offender's long and troubled history, deprived upbringing, early exposure to drugs, and the significant period of supervision and support he would require on release. The sentences were structured with an extended parole period of three years to reflect this, with the total aggregate sentence determined after applying the totality principle to avoid a crushing or disproportionate outcome.

Orders Made

  • Damage property (s 195 Crimes Act): 11 months imprisonment
  • Stalk and intimidate (s 13 Crimes (Domestic and Personal Violence) Act): 1 year and 10 months imprisonment
  • Use offensive weapon with intent, Cringila (s 33B(1)(a) Crimes Act): 2 years and 10 months imprisonment
  • Use offensive weapon in company with intent, Woonona (s 33B(2) Crimes Act): 4 years and 6 months imprisonment
  • Assault occasioning actual bodily harm / demand with menaces (s 99(2) Crimes Act): 2 years and 9 months imprisonment
  • Drive while disqualified: 2 months imprisonment; 12-month driving disqualification, operative upon release
  • Possess prohibited drug and custody of knife (s 166 certificate): No further penalty; dealt with under s 10A Crimes (Sentencing Procedure) Act 1999 (inexpedient to punish)
  • Stalk and common assault (s 166 certificate): Dismissed as backup charges; AVO breach on certificate dealt with under s 10A to avoid double counting
  • Total aggregate sentence: 7 years and 3 months imprisonment, commencing 8 June 2018
  • Non-parole period: 4 years and 3 months; eligible for parole consideration from 7 September 2022
  • Parole period: 3 years (special circumstances found)
  • Total sentence expiry: 7 September 2025

Key Takeaways

  • A guilty plea entered mid-trial, following the admission of adverse evidence and after the offender had run a false version of events, will attract only a limited sentencing discount compared to an early plea.
  • Where an offender commits separate and distinct offences across multiple incidents involving different victims, courts will apply the totality principle to ensure the aggregate sentence is proportionate and not crushing, while still reflecting the full criminality of each episode.
  • Breaching an Apprehended Personal Violence Order is treated as a significant aggravating factor in sentencing for domestic violence offending, particularly where the breach occurs repeatedly and in the presence of children.
  • Special circumstances justifying an extended parole period can be established by reference to an offender's deprived background, early drug use, lengthy history of offending, and the level of rehabilitation and supervision required upon release.
  • Under s 10A of the Crimes (Sentencing Procedure) Act 1999, a court may record a conviction but impose no further penalty where punishing an offender for a particular count would result in double counting of conduct already reflected in the sentence for another offence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33B(1)(a), 33B(2), 59(2), 97(1), 99(2), 195(1)(a)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A
- Criminal Procedure Act 1986 (NSW), s 166

Cases:
- R v Coe [2019] NSWDC 236
- Postiglione v The Queen (1997) 189 CLR 295