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District Court 11 October 2019

R v BB

[2019] NSWDC 556

Assault & violenceTheft & propertyPublic order & justice offences

Citation: R v BB [2019] NSWDC 556
Court: District Court of New South Wales
Date: 11 October 2019
Judge: Grant DCJ

Background

The offender pleaded guilty to entering the dwelling house of an elderly woman at Toongabbie on 25 January 2017, intending to steal, in circumstances of aggravation (knowing a person was present) and special aggravation (intentionally inflicting grievous bodily harm on the victim). The offence was charged under s 111(3) of the Crimes Act 1900, which carries a maximum penalty of 20 years imprisonment.

The victim sustained severe facial injuries during the attack, required surgery, and spent time in intensive care. She never recovered her independence or her previous way of life. Her son found her on Mother's Day, 15 May 2017, drawing her last breaths. She died that day.

The offender also asked the court to take into account, on a Form 1, a larceny charge relating to a mobile phone and a brooch taken during the same incident. The offender had been in custody since his arrest on 26 January 2017.

  • What sentence was appropriate for a specially aggravated home invasion that resulted in the victim's death?
  • How should the court treat the victim impact statement, including a statement delivered by the victim's son following her death?
  • What discount, if any, should be applied for the guilty plea, and where within the applicable range should the discount fall given the timing of the plea?
  • How should the court avoid double-counting when applying statutory aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999?
  • What weight should be given to the offender's youth and other personal circumstances?

Decision

The offence and its objective seriousness. Grant DCJ structured the analysis around three elements: entry with intent to steal; entry in circumstances of aggravation (knowledge a person was present); and the intentional infliction of grievous bodily harm constituting special aggravation. The special aggravation elevated the maximum penalty from 10 to 20 years. The court was careful not to double-count statutory aggravating factors, noting for example that the offence being committed in the victim's home was an element of the charge, not a separate aggravating circumstance under s 21A(2).

Victim impact statement. The court received and considered a victim impact statement delivered by the victim's son. The proceedings having commenced before 27 May 2019, s 28(4) of the Crimes (Sentencing Procedure) Act applied, permitting a family victim impact statement to be taken into account as an aspect of harm done to the community. Grant DCJ described the statement as "very powerful" and noted that the victim had died without ever knowing why the offence had been committed against her.

Guilty plea discount. The plea was not entered until 24 May 2019, three days before a trial date set for 27 May 2019, and only after a written offer was made on behalf of the offender in April 2019. The Crown submitted the discount should fall at the lower end of the post-arraignment range of 10 to 15 per cent. The offender argued for a higher discount on the basis of utilitarian value and the practical difficulties the Crown faced in commencing the trial. Grant DCJ applied a 20 per cent discount, arriving at a pre-discount starting point of 10 years and a final sentence of 8 years.

Personal circumstances and sentencing purposes. The court took the offender's youth into account, finding that it moderated his moral culpability. Consistent with the Markarian approach, the court weighed all relevant factors together rather than applying a mathematical formula, balancing punishment, deterrence, community protection, denunciation, recognition of harm, and prospects of rehabilitation.

Orders Made

  • The offender is sentenced to 8 years imprisonment (reflecting a 20% guilty plea discount from a starting point of 10 years).
  • Non-parole period: 5 years and 6 months.
  • Sentence commences: 26 January 2017.
  • Head sentence expires: 25 January 2025.
  • Non-parole period expires: 25 July 2022, at which point the offender becomes eligible for parole.
  • The court noted the potential application of the Crimes (High Risk Offenders) Act 2006, under which the State may apply to the Supreme Court for continued supervision or detention beyond the sentence end date.

Key Takeaways

  • The District Court confirmed that the circumstance of special aggravation (intentional infliction of grievous bodily harm) under s 111(3) of the Crimes Act 1900 doubles the maximum penalty from 10 to 20 years, making that maximum an important sentencing guidepost.
  • Double-counting must be avoided when applying s 21A(2) aggravating factors: where a feature of the offence (such as its commission in a victim's home) already forms part of the charge, it cannot also be treated as a separate aggravating circumstance.
  • A guilty plea entered only days before a scheduled trial date, with no prior plea offer made, attracted a discount at what the court assessed as the lower-to-mid range, though Grant DCJ ultimately applied 20% having regard to the utilitarian value of the plea and the circumstances of the proceedings.
  • Under s 28(4) of the Crimes (Sentencing Procedure) Act, a family victim impact statement may be considered in proceedings commenced before 27 May 2019 on the basis that the harm to the victim's immediate family is an aspect of harm done to the community.
  • Consistent with Markarian v The Queen, the sentencing court rejected any purely mathematical approach, instead weighing all relevant factors holistically to reach an appropriate sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33(1)(a), 105A(1)(f), 111(3), 112(3), 117
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 26, 28, 32
- Crimes (High Risk Offenders) Act 2006 (NSW)

Cases
- Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518
- BP v R [2010] NSWCCA 159
- El-Zeyat & others v R [2015] NSWCCA 196
- KT v R [2008] NSWCCA 51
- Khawaja v R [2014] NSWCCA 80
- Markarian v The Queen [2005] HCA 25; 215 ALR 213
- Millwood v R [2012] NSWCCA 2
- R v Borkowski (2009) 195 A Crim R 1
- R v Clinch (1994) 72 A Crim R 301
- R v De Simoni (1981) 147 CLR 383
- R v DH; R v AH [2014] NSWCCA 326
- R v Dib [2003] NSWCCA 117
- R v Elkassir [2013] NSWCCA
- R v Lambell [2019] NSWDC 78
- R v MAK; R v MSK [2006] NSWCCA 381
- R v Simpson (2001) 53 NSWLR 704
- R v Stambolis [2006] NSWCCA 56
- R v Thammavongsa [2015] NSWCCA 107
- R v Thomson; R v Houlten (2000) 49 NSWLR 383
- R v Wilhelm [2010] NSWSC 378