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District Court 10 October 2019

R v Williams

[2019] NSWDC 804

Theft & propertyFirearms & weaponsPublic order & justice offences
SENTENCING RELEVANT FACTORS ON SENTENCING A SERIES OF SERIOUS OFFENCES TOTALITY PARITY LIFE OF CONSIDERABLE DISADVANTAGE

Citation: R v Williams [2019] NSWDC 804
Court: District Court of New South Wales
Date: 10 October 2019
Judge: Haesler SC DCJ

Background

The offender, born in 1990, came before the District Court for sentencing on five serious offences committed in March and April 2018. A psychologist described his background as one of "dislocation and abandonment," with much of his adolescence spent on the streets or in juvenile detention, and much of his adult life cycling in and out of custody. He was released from his most recent period of custody in August 2017 without parole supervision and initially established himself in the community, but soon returned to associating with others engaged in serious criminality.

The five offences spanned two separate episodes. In March 2018, the offender assisted others who broke into residential premises at Kiama Downs and stole motorcycles, by receiving and attempting to take away one of those motorcycles (accessory after the fact to aggravated break, enter and steal). In April 2018, he participated in a break-in at Cordeaux Heights, was carried in the stolen vehicle, and was present in that car when a co-offender pointed a loaded shotgun through the window at a group of people outside a home in Berkeley, discharged the weapon, and made serious threats to kill. The offender also later directed another person to the location of the firearm and the stolen car, which was then destroyed by fire (accessory after the fact to firing a firearm in a manner likely to endanger safety).

A notable feature of the April incident was that the offender struck down the co-offender's arm as the gun was discharged, deflecting the shot into the car door rather than towards the people outside. A related matter involving the offender being carried in the stolen vehicle was taken into account on a Form 1 (a document that allows a court to take additional admitted offences into account without imposing separate punishment for them).

  • What was the appropriate head sentence for each offence, having regard to maximum penalties and, where applicable, the standard non-parole period?
  • How should the sentences be structured in aggregate, taking into account the principles of totality (ensuring the combined sentence is not disproportionate to the overall criminality) and concurrence versus accumulation?
  • Was a finding of special circumstances justified so as to extend the parole period beyond the statutory default (which is one third of the head sentence)?
  • What weight should be given to the offender's early guilty plea, his background of serious disadvantage, and the prospect of rehabilitation?
  • What sentencing adjustments followed from the offender's personal history, including the absence of a normal community life?

Decision

Haesler SC DCJ identified the offences as serious. The aggravated break, enter and steal carried a standard non-parole period of five years and a maximum of 20 years. However, the judge assessed that particular offence as falling towards the lower end of the objective range for such crimes, given the broad spectrum they encompass. The firearms-related accessory offence attracted the most significant individual sentence of two years and two months, reflecting the gravity of the conduct, even though the offender had acted to deflect the shot.

Each individual sentence was reduced by 28 per cent in total: 25 per cent for the utilitarian value of the early guilty plea, and a further 3 per cent pursuant to section 23 of the Crimes (Sentencing Procedure) Act 1999. The judge then applied the principles of totality to arrive at an aggregate sentence that was proportionate to the overall conduct rather than simply adding each term together.

The judge made a finding of special circumstances to justify a longer-than-usual parole period. This recognised that the offender had never lived a normal community life and would require a staged, supervised re-entry into the community. The judge specifically recommended engagement with the Aagana Treatment Centre as part of any structured release, and noted that actual release on parole would remain a matter for the State Parole Authority, which the offender would need to satisfy through improved custodial behaviour.

The judge acknowledged that two factors provided "a small amount of confidence" in the offender's prospects: his consistently maintained early guilty plea and the fact that, at the moment the firearm discharged, he had acted to push the weapon down and potentially prevent serious injury to those outside the premises. Nonetheless, the court emphasised that the offending required denunciation and custodial punishment.

Orders Made

  • Each individual sentence was reduced by 28 per cent (25 per cent for the utilitarian value of the early guilty plea and 3 per cent under s 23).
  • Offence 1 (count 4, accessory after the fact to aggravated break, enter and steal, Kiama Downs): 1 year and 5 months.
  • Offence 2 (count 1, aggravated break, enter and steal, Cordeaux Heights): 1 year and 9 months, with a non-parole period of 1 year and 1 month (incorporating the Form 1 matter).
  • Offence 3 (count 2, being carried in a stolen conveyance): 1 year and 1 month.
  • Offence 4 (count 3, intimidation, Crimes (Domestic and Personal Violence) Act 2007): 1 year and 5 months.
  • Offence 5 (count 5, accessory after the fact to discharging a firearm likely to endanger safety): 2 years and 2 months.
  • Aggregate sentence: 3 years and 8 months, commencing 17 April 2018.
  • Non-parole period: 2 years and 2 months, making the offender eligible for parole consideration on 16 June 2020.
  • Parole period: 1 year and 6 months; total sentence expiring 16 December 2021.
  • A non-publication order was made in relation to the name of an alleged co-offender whose trial was listed in 2020.

Key Takeaways

  • A finding of special circumstances in sentencing is available where an offender has never lived a normal community life and requires structured, supervised reintegration, justifying an extended parole period beyond the statutory default ratio.
  • The District Court assessed an aggravated break, enter and steal offence as falling towards the lower end of the objective range, illustrating that the standard non-parole period is not a fixed benchmark but one reference point that must be calibrated to the particular circumstances of the offending.
  • Totality principles required the court to look beyond the arithmetic sum of individual sentences and impose an aggregate term proportionate to the offender's overall criminality across multiple offences and episodes.
  • An early, consistently maintained guilty plea attracted a 25 per cent utilitarian discount, demonstrating the significance the sentencing framework attaches to early acceptance of responsibility in reducing the burden on the courts.
  • The offender's conduct in deflecting the firearm at the critical moment, while not eliminating his criminal liability, was treated as a relevant mitigating circumstance and a modest indicator of rehabilitative potential.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 112(2), 154A(1)(b), 93G(1)(c), 350
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Crimes (Administration of Sentences) Act 1999 (NSW)

Cases:
- Attorney General's Application No. 1 (2002) 56 NSWLR 146
- R v De Simoni (1981) 147 CLR 383