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District Court 30 April 2020

R v JOHNSTONE; R v KELLY-NELDER

[2020] NSWDC 152

Assault & violenceTheft & propertyPublic order & justice offences
CRIME SENTENCING OFFENDERS TAKE AND DRIVE MOTOR VEHICLE RECEIVE PROPERTY STOLEN OUTSIDE STATE ATTEMPTED ROBBERY

Citation: R v Johnstone; R v Kelly-Nelder [2020] NSWDC 152
Court: District Court of New South Wales
Date: 30 April 2020
Judge: Lerve DCJ

Background

Two co-offenders, who were in a relationship at the time, committed a sustained series of offences across the Albury-Wodonga region in late 2018. The offending escalated from the unauthorised use of a motor vehicle through to armed robbery and the aggravated kidnapping of victims for advantage. Both offenders were part of a joint criminal enterprise throughout the relevant period.

The first offender, Johnstone, pleaded guilty to 11 charges, including armed robbery, attempted robbery, two counts of aggravated take and detain a person for advantage, aggravated take and drive, and dishonestly obtaining property by deception. The second offender, Kelly-Nelder, pleaded guilty to 13 substantive charges and an additional four matters dealt with under s 166 certificates (minor traffic offences handled in the Local Court), including driving dangerously in a police pursuit, using an offensive weapon to avoid apprehension, and common assault.

Both entered their pleas at the Wagga Wagga Local Court in August 2019 and maintained those pleas at the District Court sentence hearing in March 2020. The central task for the sentencing judge was to impose appropriate aggregate sentences, accounting for the volume and gravity of the offending, the joint enterprise nature of many offences, and each offender's personal circumstances.

  • What aggregate sentences were appropriate for two co-offenders who had committed a high volume of serious offences in joint enterprise?
  • How should the 25% utilitarian discount for early guilty pleas be applied across multiple charges?
  • How should a Form 1 matter (a related uncharged offence taken into account on sentence) be treated, particularly where that charge was also a substantive charge against the co-offender?
  • Whether each offender's personal circumstances, including substance abuse history and any cognitive limitations, warranted a finding of special circumstances justifying a reduced non-parole period relative to the total sentence?
  • How should the principles from the Guideline Judgment on Form 1 matters (Attorney General's Application No 1 of 2002) apply to Johnstone's sentencing?

Decision

Lerve DCJ convicted both offenders on all charges to which they had pleaded guilty and imposed aggregate custodial sentences. Johnstone received an aggregate sentence of 8 years and 6 months, with a non-parole period of 5 years and 6 months commencing 20 December 2018. Kelly-Nelder received an aggregate sentence of 8 years, with a non-parole period of 5 years commencing 20 November 2018. The non-parole period for Johnstone represented approximately 65% of the total sentence, and for Kelly-Nelder approximately 62.5%, each reflecting a finding of special circumstances.

The full 25% utilitarian discount was applied to both offenders across all charges, given that pleas were entered at the earliest opportunity and maintained through to the sentence hearing. The Form 1 charge against Johnstone (take and drive without consent of a vehicle belonging to a named victim at Burrumbuttock) was taken into account in determining the indicative sentence for the armed robbery charge, consistent with the principles in the Attorney General's Guideline Judgment on Form 1 matters.

Lerve DCJ identified special circumstances for both offenders, citing the need for extended supervision on parole given their substance abuse histories and the rehabilitative objectives of sentencing. The judge recommended that any parole release be subject to conditions requiring supervision and compliance with directions relating to substance abuse treatment and counselling, while noting that parole decisions remain entirely within the parole authority's discretion.

Although the offending was treated as serious across the board, the court assessed the initial vehicle-taking offence as well below mid-range, notwithstanding the Crown's submission that its use in connection with subsequent offending elevated its seriousness. The more serious charges, particularly the armed robbery and aggravated take and detain offences, attracted the greater weight in the sentencing calculus.

Orders Made

Johnstone:
- Convicted on all charges to which he pleaded guilty
- Form 1 matter taken into account for the armed robbery indicative sentence
- Aggregate sentence: 8 years and 6 months imprisonment
- Non-parole period: 5 years and 6 months, commencing 20 December 2018, expiring 19 June 2024
- Balance of term on parole: 3 years, from 20 June 2024 to 19 June 2027
- Eligible for release to parole at expiration of non-parole period (release recommended, subject to supervision and substance abuse treatment conditions)

Kelly-Nelder:
- Convicted on all charges to which she pleaded guilty
- Aggregate sentence: 8 years imprisonment
- Non-parole period: 5 years, commencing 20 November 2018, expiring 19 November 2023
- Balance of term on parole: 3 years, from 20 November 2023 to 19 November 2026
- Eligible for release to parole at expiration of non-parole period (release recommended, subject to supervision and substance abuse treatment conditions)
- Disqualified from driving:
- 3 years (automatic) for driving dangerously in a police pursuit (s 51B(1))
- 18 months on each of the two dangerous driving charges attaching to s 166 certificates
- 12 months for driving while disqualified
- 6 months for driving with illicit drug in oral fluid
- All disqualification periods to run concurrently

Key Takeaways

  • The District Court applied aggregate sentencing to both offenders, reflecting the volume and seriousness of charges while avoiding a crushing total sentence that failed to account for the overall criminality as a connected whole.

  • A Form 1 matter that is simultaneously a substantive charge against a co-offender is properly taken into account on sentence for the first offender in accordance with the Guideline Judgment in Attorney General's Application No 1 of 2002, without affecting the co-offender's separate sentencing for that same charge.

  • Where co-offenders have committed the majority of their offending in joint enterprise, their aggregate sentences may legitimately differ to reflect differences in the specific charges each faced and individual circumstances, even when the overall criminality is substantially shared.

  • Special circumstances were found for both offenders, reducing the proportional non-parole period below the statutory default, primarily on account of each offender's entrenched substance abuse issues and the need for extended post-release supervision to support rehabilitation.

  • The utilitarian value of early guilty pleas attracted the full 25% discount across all matters for both offenders, consistent with the principle that timely pleas of guilty, maintained through to sentencing, justify the maximum available discount.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW): ss 61, 86(2), 94(a), 97(1), 154A(1)(a), 154C(2), 189A(1), 192E(1)(a), 33B(1)(a), 51B(1)
- Criminal Procedure Act 1986 (NSW): s 166
- Road Transport Act 2013 (NSW): ss 54(1)(a), 111(1)(a), 117(2)

Cases:
- The Attorney General's Application Pursuant to s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 (Guideline Judgment on Form 1)
- The Attorney-General's Application No 2 of 2002 (2002) 137 A Crim R 196
- Bugmy v The Queen [2013] HCA 37
- Muldrock v The Queen [2011] HCA 39
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- R v Henry & Ors (1999) 46 NSWLR 346
- R v Barker & Gibson [2006] NSWCCA 20
- Ngati v R [2014] NSWCCA 125
- Tepania v R [2018] NSWCCA 247
- Tiknius v R (2