Citation: R v Bottom [2019] NSWDC 828
Court: District Court of NSW
Date: 20 November 2019
Judge: Norrish QC DCJ
Background
The offender pleaded guilty to six principal offences committed between August and December 2018 in and around Orange, NSW. The offending included two break, enter and steal offences at the same residential property (from which firearms were stolen on the first occasion), an aggravated break, enter and steal in company (again involving firearms), an entering dwelling with intent to steal, a police pursuit offence, and unlawfully selling firearms on three or more occasions within 12 months contrary to the Firearms Act 1996.
The offender was also sentenced on a Form 1 basis for nine additional offences attached to the aggravated break, enter and steal charge, and two further offences attached to the Firearms Act charge. Six further matters on a section 166 certificate, comprising one apprehended domestic violence order breach and five driving whilst disqualified offences, were also before the court.
At the time of the offending, the offender was on conditional liberty, including a section 9 bond and a Community Correction Order. He also had an existing Local Court sentence of 12 months imprisonment (with a seven-month non-parole period commencing 5 January 2019) for property damage, intimidation and ADVO contraventions, which was relevant to fixing the overall non-parole period.
Legal Issues
- How to structure and aggregate sentences for a large number of principal offences, Form 1 matters, and section 166 certificate matters
- Whether special circumstances existed to justify a non-parole period below the statutory one-third default
- How to account for the existing Local Court sentence when calculating the effective non-parole period across all matters
- Whether parity with a co-offender's sentence required any adjustment
- The relevance of the offender's personal circumstances, including methamphetamine dependency, loss of a child, depression, and prior stable employment history
Decision
His Honour imposed two aggregate sentences for the principal offences and structured the sentencing around a finding of special circumstances. The first aggregate sentence covered certain matters and the second, covering the principal offences including the serious Firearms Act offence, was nine years imprisonment commencing 17 July 2020 and expiring 16 July 2029. A non-parole period of four years and eleven months was fixed for that second aggregate sentence, expiring 16 June 2025.
The court found special circumstances under section 44 of the Crimes (Sentencing Procedure) Act 1999 on several grounds. The partial accumulation of sentences, the offender's need for professional support in adjusting to community life, drug dependency treatment, grief counselling, and assistance with employment all supported a departure from the standard non-parole period proportion. The court calculated the non-parole period by reference to 60 per cent of the total term of imprisonment across all matters, including the Local Court sentence.
The court declined to fix a discrete non-parole period for the section 166 certificate matters because the second aggregate sentence would commence partway through those sentences, creating a structural reason to leave the non-parole period for those matters unfixed.
On the question of parity, the court acknowledged the co-offender Mr Warrender's sentence of 18 months imprisonment but found no parity argument arose. The criminality involved in the offender's Firearms Act charge was significantly greater than Warrender's more limited admitted conduct. The court characterised the offending overall as planned rather than impulsive, and noted the offender's significant criminal history and his methamphetamine dependency as relevant to both moral culpability and the need for rehabilitation.
Orders Made
- First aggregate sentence: terms not fully reproduced in the provided text
- Second aggregate sentence: nine years imprisonment, commencing 17 July 2020, expiring 16 July 2029
- Non-parole period for second aggregate sentence: four years and eleven months, expiring 16 June 2025
- No discrete non-parole period fixed for the section 166 certificate matters
- Special circumstances finding made under section 44 of the Crimes (Sentencing Procedure) Act 1999
Key Takeaways
- The District Court held that partial accumulation of sentences is itself capable of constituting a special circumstance justifying a non-parole period below the statutory default proportion.
- Where an offender has an existing custodial sentence already running, that sentence must be taken into account when calculating the effective overall non-parole period across all matters, not merely when setting commencement dates.
- A co-offender's lower sentence does not automatically trigger a parity adjustment where the two offenders admitted to materially different conduct and levels of criminality.
- Methamphetamine dependency, while relevant to moral culpability and the need for rehabilitation, does not displace the significance of planned offending or a substantial prior criminal history in the sentencing calculus.
- Under the aggregate sentencing regime, the court has discretion not to fix a separate non-parole period for certificate matters where the structure of accumulating sentences makes doing so impractical or anomalous.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 51B(1), 112(1)(a), 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 44, 166
- Firearms Act 1996 (NSW), ss 51B(1), 62(1)(c)
Cases
- Attorney General's Application No 1 (2002) 56 NSWLR 147
- Jimmy v R [2010] NSWCCA 60
- Markarian v R [2005] HCA 25; (2005) 228 CLR 357
- Muldrock v R [2011] HCA 39; 244 CLR 120
- Pearce v R (1998) 194 CLR 610
- R v Holder [1983] 3 NSWLR 245
- R v Johnson [2004] NSWCCA 341
- R v Mill (1988) 166 CLR 59
- R v Ponfield (1999) 48 NSWLR 327
- R v XX (2009) 195 A Crim R 38
- Tepania v R [2018] NSWCCA 247
- Veen v R (No 2) [1988] HCA 14; 164 CLR 465
- Wong v R (2001) 207 CLR 584