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District Court 11 July 2019

R v Lawrence

[2019] NSWDC 666

Assault & violenceTheft & propertyPublic order & justice offences
CRIME ENTER WITH INTENT CIRCUMSTANCES OF AGGRAVATION INTIMIDATION INTENTIONAL WOUNDING IN COMPANY. SENTENCING

Citation: [2019] NSWDC 666
Court: District Court of New South Wales
Date: 11 July 2019
Judge: Haesler SC DCJ

Background

In the early hours of 29 May 2018, two masked and armed men entered a family home in Figtree, NSW, where adults and children were present. The larger man carried a meat cleaver; the smaller man a large kitchen knife. When one resident moved toward the intruders rather than comply with their demands, a violent struggle broke out inside the home, involving large bladed weapons, overturned furniture, and blood throughout the room.

The resident who confronted the men was stabbed multiple times. He sustained three significant lacerations requiring surgery, including injuries exposing and damaging muscle tissue in his right shoulder and left forearm. He escaped the house but collapsed outside before seeking refuge at a neighbour's home.

The offender, identified by three witnesses during the struggle when his disguise came loose, was arrested after attending Wollongong Police Station in July 2018. He initially denied involvement. After pleading not guilty in the Local Court and being committed for trial on a specially aggravated break and enter charge, he ultimately entered a guilty plea on a fresh indictment just before his trial date.

  • Whether the Early Appropriate Guilty Plea (EAGP) sentencing discount scheme applied where a plea was entered to a new count on a fresh indictment based on substantially the same facts as the original charge
  • What discount percentage applied given the late stage of the plea, and how to calculate it without adopting a strictly arithmetical approach
  • How to determine the correct commencement date for the sentence, accounting for time already served in custody and a Local Court sentence that overlapped
  • How the principles of totality, accumulation, and special circumstances applied in structuring the sentence
  • How the offender's significant criminal history for violent offences, background of deprivation, and limited experience of community life bore on the appropriate sentence

Decision

Application of the EAGP scheme and plea discount

Haesler SC DCJ held that the EAGP scheme applied even though the plea was entered to a new count on a fresh indictment. The reason was that the facts establishing the elements of the new count remained substantially the same as those in the original brief, satisfying section 25D(4)(a) of the Crimes (Sentencing Procedure) Act 1999. Because the plea came after committal and less than 14 days before the scheduled trial, the prescribed discount was 5%. The judge declined to apply a strictly arithmetical method in calculating that discount, instead rounding down to produce a result as close to 5% as practically possible, consistent with established common law practice against specifying sentences broken down into days or weeks.

Objective seriousness of the offence

The court characterised the offence as requiring serious punishment. Relevant features included the entry into a family home at night, the use of weapons that had been brought to the scene (indicating planning), the direct confrontation and intimidation of multiple occupants including children asleep in the home, and the nature and extent of the victim's injuries. The court noted that the absence of a Victim Impact Statement did not allow any inference that the offence had minimal impact. Although the judge treated the in-company and home-entry elements as already embedded in the higher maximum penalty of 20 years, care was taken not to double-count those elements as additional aggravating factors.

Antecedents, personal circumstances, and the tension between deterrence and rehabilitation

The offender had a lengthy criminal history for violence, beginning in the Children's Court in 1997 and continuing through multiple imprisonments in both New South Wales and Queensland. The court acknowledged the principles in Bugmy v The Queen regarding the relevance of profound childhood deprivation, noting that the offender had grown up without the grounding in normal community life that most people take for granted. The judge observed that prior harsh punishments had not deterred him, and that imprisonment appeared to have produced more negative lessons than positive ones. Community protection nonetheless required a substantial custodial term, but special circumstances were found to justify a longer than usual parole period, maximising the time the offender could be supervised in the community after release.

Commencement date and totality

The court determined that the sentence should commence on 8 November 2018, not from the date of first remand (9 July 2018). This reflected the need to give independent weight to Local Court sentences served between August and April 2019, while also applying the totality principle to avoid an aggregate sentence that was disproportionate overall. The offender's commission of the offence while on conditional bail was treated as an aggravating factor.

Orders Made

  • The offender was convicted of entering a dwelling house in company and intentionally wounding the victim, contrary to section 111(3) of the Crimes Act 1900 (maximum penalty: 20 years)
  • The sentence was set to commence on 8 November 2018
  • The pre-plea notional sentence was six years and six months; after the 5% discount this was rounded down
  • Non-parole period of three years and eight months, commencing 8 November 2018, with eligibility for parole on 7 July 2022
  • Parole period of two years and six months from 7 July 2022
  • Total sentence of six years and two months, expiring 7 December 2025

Key Takeaways

  • The District Court confirmed that the EAGP discount scheme can apply to a plea entered on a fresh indictment to a new count, provided the underlying facts are substantially the same as those in the original brief, as required by section 25D(4)(a) of the Crimes (Sentencing Procedure) Act 1999.
  • A strictly arithmetical calculation of the EAGP discount is not compulsory; the court may round results to arrive at a figure practically equivalent to the prescribed percentage, consistent with the common law approach to sentence calculation.
  • Under Bugmy v The Queen, a background of severe deprivation remains a relevant mitigating consideration even for an adult offender with an extensive violent criminal history, though it does not override the need for community protection.
  • Where an offender has served a Local Court sentence during the same period of remand, sentencing courts must carefully identify the appropriate commencement date and apply both the totality principle and the need to impose some independent punishment for the Local Court matters.
  • Special circumstances justifying a non-standard ratio of non-parole to total sentence may be found where extended post-release supervision is considered necessary for community protection and rehabilitation, particularly where repeated imprisonment has produced adverse rather than rehabilitative outcomes.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), sections 111(3) and 112(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), sections 25D(3)(c), 25D(4)(a), and 29(3)

Cases
- Bugmy v The Queen (2013) 249 CLR 571
- Markarian v The Queen (2005) 228 CLR 357
- Munda v Western Australia (2013) 249 CLR 600
- Veen v R (No 2) (1988) 164 CLR 465