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District Court 8 November 2019

R v Lawrence

[2019] NSWDC 816

Assault & violencePublic order & justice offences
SENTENCING RELEVANT FACTORS ON SENTENCE HOME INVASION IN COMPANY PERCEIVED GRIEVANCE DID NOT WALK AWAY

Citation: R v Lawrence [2019] NSWDC 816
Court: District Court of New South Wales
Date: 8 November 2019
Judge: Haesler SC DCJ

Background

The offender pleaded guilty to aggravated entry into a dwelling with intent to commit a serious indictable offence (intimidation) in company, contrary to s 112(2) of the Crimes Act 1900, carrying a maximum of 14 years' imprisonment. A related intimidation offence under s 13 of the Crimes (Domestic and Personal Violence) Act 2007 was dealt with on a certificate under s 166 of the Criminal Procedure Act 1986.

The offending arose from a dispute in July 2018 at a Warrawong housing commission property. After being asked to leave by the occupant's boyfriend, the offender threatened to summon her brothers and sent them a text message. They arrived armed with machetes or large knives. The group forced entry up the stairs, and when the boyfriend retreated behind a closed bedroom door, the offender encouraged its destruction. The door was hacked with a machete, forced off its hinges, and the occupants, including five young children, were subjected to violent threats. The offender continued to threaten the boyfriend even after police were called.

At the time of sentencing, the offender was a first offender, the mother of four young children, and pregnant. She had a background of significant personal disadvantage, including documented domestic violence inflicted upon her by a former partner. She had failed to engage with support services during the proceedings and had failed to appear, leading to an arrest warrant being issued. She had been in custody since 19 July 2019.

  • What was the appropriate sentence for a first offender convicted of aggravated home invasion in company, where machetes were used by co-offenders?
  • How should the court weigh the objective seriousness of the offending against substantial mitigating factors, including youth, first offence status, history of disadvantage, pregnancy, and the impact of custody on dependent children?
  • Whether parity required reference to the sentence imposed on the offender's co-accused brother, who had been convicted of a lesser related offence after a jury acquittal on the more serious charge.
  • What discount was appropriate for a late guilty plea entered by a person who was unrepresented at arraignment and whose matter had never been listed for trial?

Decision

Haesler SC DCJ found the offending was serious in its objective features. The offender had the opportunity to walk away from the confrontation and did not. She called her brothers, did not withdraw when it became apparent they were armed, and in fact encouraged the forced entry. The violence was terrifying for those inside, including a 21-month-old child, and occurred in a private dwelling. The court described the incident as a "nasty and violent" home invasion.

On subjective matters, the court accepted the offender's history of disadvantage, her experience of domestic violence, and her status as a first offender. The court also gave close consideration to the impact of custody on her four existing children and her unborn child. Reference was made to the Gaol Mother and Children Program and relevant appellate authority on the significance of maternal separation, though the court did not rely on that program as a reason to reduce the sentence substantially.

The court found no issue of parity with the brother's sentence. The brother had an extensive criminal record and had been on conditional release when the offending occurred, distinguishing his position materially from that of the offender.

A 20% reduction for the guilty plea was granted, notwithstanding its lateness, on the basis that the offender was unrepresented at arraignment and the matter had never been listed for trial. The court found special circumstances justifying a departure from the standard ratio of non-parole period to head sentence, resulting in an unusually short non-parole period relative to the overall sentence. This was expressly designed to allow the offender to be released before the birth of her child while still recognising the gravity of the offence.

Orders Made

  • Principal offence (aggravated enter dwelling in company, s 112(2) Crimes Act 1900): Convicted. Total sentence of 1 year and 7 months, with a non-parole period of 4 months commencing 18 August 2019 and expiring 17 December 2020. Parole period of 1 year and 3 months, commencing 18 December 2020 and expiring 17 March 2021.
  • Certificate offence (stalk/intimidate, s 13 Crimes (Domestic and Personal Violence) Act 2007): Convicted. Community Corrections Order for 2 years from the date of sentence, with conditions requiring supervision by Community Corrections for as long as deemed necessary and participation in any directed anger management courses.

Key Takeaways

  • The District Court confirmed that perceived grievances, even if arising from genuine interpersonal conflict, do not mitigate the objective seriousness of a home invasion carried out with armed co-offenders. Deterrence and victim vindication remained prominent sentencing purposes.
  • A first offender's failure to engage with support services, and eventual failure to appear, are relevant to the sentencing exercise, though the court here still extended significant leniency in light of the full subjective case.
  • Special circumstances can justify a substantially shortened non-parole period relative to the head sentence, particularly where pregnancy and the welfare of dependent children are significant factors, provided the overall sentence still reflects the gravity of the offence.
  • Where a co-accused was acquitted by a jury on a more serious charge and convicted of a lesser offence, and bore a materially different criminal history and conditional release status, no parity obligation arose in relation to the offender's sentence.
  • Under the court's approach to late guilty pleas, a 20% discount remained available where the offender was unrepresented at arraignment and the matter had never proceeded to a listed trial date.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 105A, 112(2)
- Criminal Procedure Act 1986 (NSW), s 166
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13
- Children (Criminal Proceedings) Act 1987 (NSW), s 15

Cases
- Blackman and Walters v R [2001] NSWCCA 121
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- Bugmy v The Queen (1990) 169 CLR 525
- Dipangkear v R [2010] NSWCCA 156
- HJ v R [2014] NSWCCA 21
- Hoskins v R [2016] NSWCCA 157
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
- Power v The Queen (1974) 131 CLR 623
- R v De Simoni (1981) 147 CLR 383
- R v Edwards (1996) 90 A Crim R 510
- R v SLR (2000) 116 A Crim R 150
- R v Togias [2001] NSWCCA 522; (2001) 127 A Crim R 23
- Simpson v R [2011] NSWCCA 534; (2011) 53 NSWLR 704