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District Court 17 December 2019

R v Box

[2019] NSWDC 786

Assault & violenceDrugsFraud & dishonestyTheft & property
CRIME SENTENCE POSSESS PROHIBITED DRUG

Citation: R v Box [2019] NSWDC 786
Court: District Court of New South Wales
Date: 17 December 2019
Judge: Colefax SC DCJ

Background

The offender, a man in his mid-thirties with a history of drug and gambling addiction, appeared for sentencing on multiple offences committed on 14 February 2019, while he was on parole for prior break and enter offences and subject to a Community Corrections Order. On that date, he attended a petrol station in Camden armed with a 30-centimetre screwdriver and attempted to rob the attendant at the counter. The robbery failed only because a metal barrier separated the offender from the attendant, who activated an emergency alarm and called police.

Approximately two hours later, the offender used a crowbar to force entry into a small community workers club and stole money from the premises. Shortly after leaving the club, police stopped his vehicle, which had been identified from the service station footage. A roadside drug test returned a positive result for methylamphetamine, and a search of the vehicle uncovered 1.60 grams of the drug.

A separate offence of dishonestly obtaining a financial advantage by deception, committed in September 2018, was also before the Court. On that occasion, the offender had used a photograph of a work colleague's Mastercard to make an unauthorised online purchase of a luxury gift. The Court noted this offence, unlike the others, had no connection to drug addiction.

  • The appropriate head sentence and non-parole period for attempted robbery armed with an offensive weapon (s 97(1), Crimes Act 1900)
  • The appropriate indicative sentence for break and enter and commit a serious indictable offence (s 112(1), Crimes Act 1900)
  • How the applicable guideline judgments in R v Henry and R v Ponfield should inform the indicative sentences
  • Whether special circumstances existed to justify varying the standard ratio between the head sentence and the non-parole period
  • How the offender's subjective circumstances, including addiction, remorse, and rehabilitation prospects, should be weighed against the aggravating features of offending on parole

Decision

Colefax SC DCJ assessed the attempted robbery as falling roughly midway between the bottom and middle of the range for offences of its kind, and the break and enter as towards but not at the bottom of the range. Both were additionally aggravated by the fact that the offender was on parole and subject to a Local Court order at the time of each offence. The drug possession and driving offences were assessed as mid-range for their respective categories.

The Court accepted that the offender's drug and gambling addictions substantially explained (though did not excuse) the offending. His subjective case was presented by personal affidavit rather than through a psychologist's report, an approach the Court acknowledged positively. The Court found the offender to be a credible and honest witness, accepted his expressed remorse as genuine, and considered his rehabilitation prospects to be real, notwithstanding a lengthy criminal history.

Early guilty pleas attracted a 25% discount across the relevant indicative sentences. The Court found special circumstances under the sentencing legislation, concluding that a longer parole period would better support rehabilitation. The non-parole period was accordingly set below the standard statutory proportion of the head sentence.

The Court also expressed pointed criticism of the format in which criminal history records are produced by NSW Police, describing the printout as resembling "a shuffled deck of cards" and noting that judges have sought a chronological format for over a decade without success.

Orders Made

  • Aggregate sentence of 4 years and 6 months imprisonment
  • Non-parole period of 2 years and 6 months, commencing 22 March 2019, expiring 21 September 2021
  • Balance of term of 2 years, commencing 22 September 2021, expiring 21 September 2023
  • Community Corrections Order (called-up bond) set aside
  • Licence disqualification of 6 months for the driving offence, commencing 22 September 2021
  • Recommendation for consideration for the compulsory drug treatment program

Key Takeaways

  • Offending on parole and while subject to a community corrections order constitutes a significant aggravating factor, as the District Court treated it when assessing both the attempted robbery and the break and enter.
  • Under the guideline judgments in R v Henry (armed robbery) and R v Ponfield (break and enter), courts must situate each offence within the relevant range even where no standard non-parole period applies; here, neither principal offence was assessed above the mid-range.
  • A finding of special circumstances permits the court to extend the proportion of the sentence spent on parole, particularly where a longer supervisory period is considered likely to support genuine rehabilitation.
  • Remorse expressed directly by an offender in sworn evidence, assessed as credible by the sentencing judge, remains a relevant factor going to rehabilitation prospects and the exercise of sentencing discretion.
  • The decision reiterates longstanding judicial criticism of the NSW Police criminal history printout format, with the Court observing that a chronological listing of offences and penalties would materially assist sentencing judges in assessing an offender's criminal trajectory.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 97(1) and 112(1)
- Drug Misuse and Trafficking Act 1985 (NSW), s 10(1)
- Road Transport Act 2013 (NSW), s 111(1)(a)

Cases:
- R v Henry (1999) 46 NSWLR 346 (guideline judgment for armed robbery)
- R v Ponfield (1999) NSWCCA 435 (guideline judgment for break and enter)