Citation: R v Meloury; R v Green; R v Schulz [2019] NSWDC 919
Court: District Court of New South Wales
Date: 16 August 2019
Judge: Payne DCJ
Background
Three co-offenders were sentenced following an armed break and enter at a residential address in Albury, New South Wales, on the night of 9 July 2017. The incident arose from a dispute over a debt: the victim had lent one of the offenders $300 and had earlier confronted him about repayment, striking him once in the face. Later that evening, all three offenders returned to the victim's friends' home armed with a machete, a metal baseball bat, and a shortened .22 rifle.
The offenders forced entry into the residence after one of them smashed a glass panel on the front door with the firearm. During the ensuing confrontation inside the home, the victim suffered serious hand injuries, including a partial amputation of a finger, after being struck with the machete. He also sustained lacerations to his forehead and leg from blows delivered by another offender using the rifle barrel.
Each offender faced charges under the Crimes Act 1900. Schulz was charged with the most serious count, specially aggravated break and enter and commit a serious indictable offence (wounding), contrary to section 112(3). Green and Meloury faced charges including aggravated break and enter and commit a serious indictable offence (inflict actual bodily harm) under section 112(2), and being armed with intent to commit an indictable offence under section 114(1)(a).
Legal Issues
- What discount each offender was entitled to for their plea of guilty, having regard to the timing and circumstances of those pleas
- Whether each offender demonstrated sufficient remorse to attract the mitigating factor under section 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999
- The objective seriousness of each offence, including the roles played by each co-offender and the applicable aggravating and mitigating factors
- What sentence was proportionate for each offender, including whether special circumstances existed to justify adjusting the standard ratio of non-parole period to total sentence
- How to achieve parity across the sentences for the three co-offenders, given the different charges and differing degrees of involvement
Decision
Payne DCJ sentenced each offender separately, tailoring the sentence to reflect individual culpability, personal circumstances, and the different offences charged. The judge found the overall offending was objectively serious: it involved a planned return to the premises with multiple weapons, forced entry into a private home, and the infliction of injuries requiring surgical repair, including tendon reconstruction and stabilisation of a partially amputated finger.
In relation to Schulz, the judge allowed a 17% discount for the utilitarian value of his guilty plea, a reduction accepted by both the prosecution and defence as appropriate given the plea was entered on the trial date, though an indication to plead had been given some weeks earlier. The judge accepted that Schulz's written letter of apology, together with his plea, satisfied both limbs of the remorse test under section 21A(3)(i), despite the Crown's opposition to that finding.
The judge also identified the features of aggravation and special aggravation applicable to the section 112(3) offence, noting that the offender was armed with an offensive weapon and intentionally wounded the victim. Relevant case law confirmed that knowledge of persons being present in the premises was a material consideration under section 105A of the Crimes Act.
Special circumstances were found in each case, warranting a departure from the standard non-parole period ratio. For Green, the judge made recommendations in the strongest possible terms that he be considered for the methadone program and that his E classification, which had been imposed while he was a juvenile, be reviewed. Similar custodial welfare recommendations were made for Schulz.
Orders Made
Cody Schulz:
- Convicted of one count contrary to section 112(3) of the Crimes Act 1900
- Non-parole period approximately 54.16% of the total term
- Special circumstances allowance: 15 months
- Recommendation for consideration for the methadone program in custody
James Meloury:
- Convictions confirmed on 14 August 2019
- Count 3 (statutory alternative): non-parole period of 2 years and 9 months, commencing 17 October 2017, expiring 16 July 2020; total term 4 years and 9 months, expiring 16 July 2022
- Count 1: non-parole period of 10 months (concurrent), commencing 17 October 2017; total term 1 year and 8 months
- Eligible for parole consideration: 16 July 2020
- Non-parole period approximately 57.89% of the total term
Dale Johnathan Green:
- Convictions confirmed on 14 August 2019
- Count 3: non-parole period of 3 years and 9 months, commencing 25 November 2017, expiring 24 August 2021; total term 6 years and 6 months, expiring 24 May 2024
- Count 2: non-parole period of 1 year and 3 months (concurrent), commencing 25 November 2017; total term 2 years and 6 months
- Eligible for parole consideration: 24 August 2021
- Non-parole period approximately 57.69% of the total term
- Recommendation in strongest possible terms for the methadone program and review of E classification
Key Takeaways
- A guilty plea entered on the trial date, where an intention to plead had been signalled several weeks earlier, attracted only a 17% utilitarian discount in these circumstances, reflecting the limited savings to the court and parties.
- Under section 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999, a plea of guilty combined with a written letter of apology can satisfy both limbs of the remorse test, even where the Crown contests that finding.
- The features of aggravation and special aggravation under section 105A of the Crimes Act 1900 relevant to a section 112(3) charge include the offender being armed with an offensive weapon and intentionally wounding a person, with knowledge of persons being present in the premises being a material consideration under case law.
- Parity across co-offenders required differentiation based on individual roles, the distinct charges faced, and each offender's personal circumstances, rather than imposing identical sentences.
- Where an offender's maximum security classification (E classification) arose from conduct as a juvenile, the District Court considered it appropriate to recommend formally that correctional authorities review that classification.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 35(3), 105A, 112(2), 112(3), 114(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A
Cases:
- Bugmy v The Queen [2013] HCA 37
- Marshall v R [2007] NSWCCA 24
- R v Li (NSWCCA, unreported, 9 July 1997)