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District Court 20 September 2019

R v Dixon

[2019] NSWDC 585

Assault & violenceFirearms & weapons

Citation: R v Dixon [2019] NSWDC 585
Court: District Court of New South Wales
Date: 20 September 2019
Judge(s): Grant DCJ

Background

The offender pleaded guilty to four offences arising from events in April and May 2017. The charges included using an offensive weapon with intent to commit an indictable offence, firing a firearm at a dwelling house with disregard for safety, and possessing two shortened firearms without authority (a sawn-off shotgun and a self-loading rifle). The victim was a 70-year-old man living alone in a ground-floor unit.

The offending involved the offender attending the victim's home on separate occasions, on one occasion brandishing a rifle and making threats, and on another occasion firing a shotgun at the victim's dwelling. The offender had been in custody since his arrest on 1 May 2017.

The charges on the final indictment differed significantly from the original indictment, which had included two counts of aggravated break and enter carrying a maximum penalty of 25 years with a standard non-parole period of seven years. Those charges were replaced or discontinued following negotiation with the Crown.

  • What guilty plea discount applied to the charges on the renegotiated indictment, given the charges had changed substantially from the original indictment?
  • Whether a plea entered promptly after a charge is reduced through negotiation should be treated as a plea at the first reasonable opportunity, or whether the utilitarian value is automatically diminished because a plea bargain was involved.
  • What weight should be given to the offender's background, including social deprivation and psychological needs, when assessing sentence?
  • Whether special circumstances existed to justify a departure from the standard non-parole period ratio.

Decision

Plea discount. Grant DCJ held that a 25% discount applied to all counts. His Honour rejected the proposition, attributed to Howie J in R v Borkowski, that the utilitarian value of a plea is automatically reduced whenever a plea bargain is involved. Drawing on R v Dib [2003] NSWCCA 117 and R v Lambell [2019] NSWDC 78, his Honour reasoned that where an offender pleads guilty promptly after the Crown indicates a willingness to accept a plea to a lesser or different charge, that plea should be treated as one entered at the first reasonable opportunity. A presumption of innocence attaches to any charge not yet faced, and no adverse inference can be drawn from not having pleaded to it earlier.

His Honour found Howie J's observation in Borkowski to be obiter dicta and inconsistent with the ratio in Dib. The sentencing judge has a discretion, first to assess whether the plea was entered at the earliest opportunity, and if satisfied of that, to grant a discount of up to 25%. Here, the utilitarian value was assessed as high, in part because the plea spared a 70-year-old victim from giving evidence and reliving the trauma of the offending.

Background and Bugmy factors. The court took into account the offender's background of social deprivation and his psychological profile. A clinical psychologist's report indicated the offender would benefit from structured reintegration support, including a residential rehabilitation placement under Probation and Parole supervision upon release. The court accepted that institutionalism should be avoided and that community protection and reformation are not opposing considerations.

Special circumstances and aggregate sentence. The court found special circumstances existed to assist with community reintegration, justifying a non-parole period shorter than the standard ratio. An aggregate sentence was imposed with partial accumulation between counts, reflecting the principles of totality and proportionality.

Orders Made

  • Count 1 (use offensive weapon with intent): indicative sentence of three years imprisonment (pre-discount: four years).
  • Count 2 (fire firearm at dwelling house with disregard for safety): indicative sentence of seven years and six months, with an indicative non-parole period of five years (pre-discount: ten years).
  • Count 3 (possess shortened firearm, sawn-off shotgun): indicative sentence of three years (pre-discount: four years).
  • Count 4 (possess shortened firearm, self-loading rifle): indicative sentence of three years (pre-discount: four years).
  • Aggregate sentence imposed: 11 years imprisonment with a non-parole period of seven years.
  • Non-parole period to expire 30 April 2024; head sentence to expire 30 April 2028.
  • Sentence backdated to commence 1 May 2017.

Key Takeaways

  • The District Court confirmed that where an offender pleads guilty promptly after the Crown indicates it will accept a plea to a different or lesser charge, the plea should be treated as entered at the first reasonable opportunity, attracting the full available discount of up to 25%.

  • Howie J's statement in R v Borkowski that the utilitarian value of a plea is automatically reduced by a plea bargain was characterised as obiter dicta and inconsistent with the ratio of R v Dib, which grants sentencing judges a discretion rather than imposing a mandatory reduction.

  • A presumption of innocence applies to any charge an offender has not yet faced, and no adverse inference can be drawn from failing to have pleaded guilty to a charge that only crystallised through Crown negotiation.

  • Under the Bugmy line of authority, background social deprivation and psychological vulnerability remain relevant mitigating factors, and the sentencing court may take clinical evidence of rehabilitation needs into account when structuring the balance between non-parole period and head sentence.

  • Partial accumulation between individual counts, including between separate firearms charges, is required to reflect the distinct criminality involved while remaining consistent with totality and proportionality principles.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33B(1)(a), 93GA(1), 112(3)
- Firearms Act 1996 (NSW), s 62(1)(b)

Cases
- Bugmy v R [2013] HCA 37; (2013) 249 CLR 571
- Jinnette v R [2012] NSWCCA 217
- Laupama v R [2015] NSWCCA 311
- Powell v R [2014] NSWCCA 69
- R v Borkowski (2009) 195 A Crim R 1
- R v Campbell; R v Smith [2019] NSWCCA 1
- R v Dib [2003] NSWCCA 117
- R v Lambell [2019] NSWDC 78
- R v Stambolis [2006] NSWCCA 56
- Zhao v R [2016] NSWCCA 179