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District Court 17 December 2019

R v Casey

[2019] NSWDC 751

Assault & violenceTheft & propertyDomestic & family violence
CRIME BREAK AND ENTER DWELLING HOUSE ASSAULT RECKLESS WOUNDING INTIMIDATION AGGRAVATING FACTORS

Citation: R v Casey [2019] NSWDC 751
Court: District Court of New South Wales
Date: 17 December 2019
Judge: Lerve DCJ

Background

The offender appeared for sentencing on eight offences arising from a series of violent incidents in May and June 2016 in the Tumut and Batlow areas. The offences involved two victims: a former domestic partner and a male acquaintance. The conduct included breaking into a government-owned dwelling on two separate occasions in May 2016, and a further incident at separate premises in June 2016.

The May 2016 incidents centred on the offender's former domestic partner. On both occasions he broke into her home in the early hours of the morning. The June 2016 incident occurred at a social gathering where the offender, under the influence of alcohol, became agitated, threatened others with a knife, assaulted his former partner, and wounded the male victim by striking him with a glass stubby bottle.

The offender pleaded guilty to three charges on the first indictment on 30 January 2019. Following plea negotiations on the eve of trial, he pleaded guilty to a further five charges on a second indictment on 3 September 2019.

  • What utilitarian discount for guilty pleas was appropriate for each indictment, given the timing of the pleas?
  • How should each offence be assessed in terms of objective seriousness, and where did each sit relative to the mid-range?
  • What weight should be given to aggravating factors, including the presence of a child, commission in the victim's home, and breach of conditional liberty?
  • Whether special circumstances existed justifying a non-parole period below the statutory ratio (that is, below one-third of the total sentence)?
  • How should the totality principle be applied when imposing an aggregate sentence across eight offences?

Decision

Guilty plea discounts: Lerve DCJ allowed a 12.5% discount for the three offences on the first indictment. Those pleas were entered in January 2019, well before the trial date, and neither party contested the midpoint figure between 10% and 15%. For the five offences on the second indictment, the pleas were entered during the week the matter was listed for trial; accordingly, the court allowed only a 10% discount, reflecting the limited utilitarian value of late pleas.

Objective seriousness: The court assessed each offence individually. The armed with intent charge from June 2016 was placed below mid-range but not significantly so, given the nature of the weapon and the oral threats made. The reckless wounding was assessed as moderately below mid-range, with the court unable to be satisfied to the criminal standard that the victim suffered permanent injury. The aggravated break and enter offences from May 2016 attracted more serious treatment, with one of those incidents involving the offender grabbing the victim by the throat in her bedroom in the early hours of the morning.

Aggravating factors and Bugmy considerations: The court identified several statutory aggravating factors, including that the offences were committed in the victim's home and that a child was present during at least one incident. The court also noted the offender was on conditional liberty at the time of the offending. In applying the principles from Bugmy v The Queen [2013] HCA 37, the court took into account the offender's background, including exposure to deprivation and disadvantage, as a mitigating consideration that did not diminish moral culpability but remained relevant to the sentencing exercise.

Special circumstances and aggregate sentence: The court invoked s 53A of the Crimes (Sentencing Procedure) Act to impose an aggregate sentence rather than individual cumulative sentences. The resulting non-parole period of 4 years and 1 month represents approximately 68% of the total sentence of 6 years, meaning the balance of term is proportionally longer than the standard ratio. The court made a formal finding of special circumstances to justify this, with reasons set out in the sentencing remarks.

Orders Made

  • The offender was sentenced to an aggregate sentence of 6 years imprisonment.
  • A non-parole period of 4 years and 1 month was imposed, commencing 8 December 2017 and expiring 7 January 2022.
  • The balance of term of 1 year and 11 months commences 8 January 2022 and expires 7 December 2023.
  • The offender is eligible for release to parole at the expiration of the non-parole period, and the court recommended that release.
  • The non-parole period of approximately 68% of the total sentence reflects a finding of special circumstances.

Key Takeaways

  • The District Court confirmed that the timing of a guilty plea directly affects the utilitarian discount available: a plea entered during the trial week attracted only 10%, compared to 12.5% for a plea entered well before the trial date.
  • Under the aggregate sentencing regime in s 53A of the Crimes (Sentencing Procedure) Act, the court must still identify the notional individual sentences for each offence before constructing the aggregate, ensuring transparency and reviewability.
  • Aggravating factors under the Crimes (Sentencing Procedure) Act, including offending in the victim's home and the presence of a child, were applied cumulatively across the relevant offences rather than treated as a single undifferentiated consideration.
  • The Bugmy principle, drawn from the High Court's decision in Bugmy v The Queen [2013] HCA 37, operated here to acknowledge the offender's background of disadvantage as a relevant mitigating matter without reducing the court's assessment of his moral culpability for serious, repeated domestic violence offending.
  • A finding of special circumstances justifying a longer balance of term, reflected in a non-parole period of approximately 68% of the total sentence, was supported by reasons tied to the offender's rehabilitation and reintegration needs across multiple offences.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 35(4), 61, 112(2), 114(1)(a)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A

Cases:
- Bugmy v The Queen [2013] HCA 37
- Muldrock v The Queen [2011] HCA 39
- Munda v The Queen [2013] HCA 38
- R v Mitchell & Gallagher (2007) 177 A Crim R 94
- McCullough v R [2009] NSWCCA 94
- McNaughton v R (2006) 66 NSWLR 566
- Aslan v R [2014] NSWCCA 114
- Beale v R [2015] NSWCCA 120
- Cherry v R [2017] NSWCCA 150
- Efthimiadis v R (No 2) [2016] NSWCCA 9
- Hamid v R [2006] NSWCCA 302
- Hart v R [2014] NSWCCA 172
- Hiron v R [2007] NSWCCA 336
- Hunter v R [2011] NSWCCA 141
- Jackson v R [2010] NSWCCA 162
- Ngati v R [2014] NSWCCA 125
- R v AD [2008] NSWCCA 289
- R v Biles (No 2) [2017] NSWSC 525
- R v Eckermann [2013] NSWCCA 188
- R v Merrin [2007] NSWCCA 255