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District Court 8 May 2020

R v DARCY

[2020] NSWDC 166

Assault & violenceTheft & property
CRIMES SENTENCE GOODS IN CUSTODY LARCENY OF A MOTOR VEHICLE FORM 1 LENGTHY CRIMINAL HISTORY

Citation: R v Darcy [2020] NSWDC 166
Court: District Court of New South Wales
Date: 8 May 2020
Judge: Lerve DCJ

Background

The offender was committed for sentence from the Young Local Court in May 2018 but failed to appear at the Wagga Wagga District Court in October 2018, resulting in a bench warrant. He was arrested on that warrant in November 2019 and remained in custody from that date, also serving a concurrently running Local Court sentence.

The offending arose from events on 1 and 2 March 2017 in Yass and Boorowa. The offender acted in concert with two co-offenders, Dugdale and Dixon. Together they stole a motor vehicle from a residential garage, broke into and entered a separate occupied dwelling, and committed a series of associated offences. The victim of the dwelling entry was a pregnant woman living with her husband and a two-year-old child.

The offender's specific role was to drive the stolen vehicle and act as lookout and getaway driver. He did not physically enter either the garage or the dwelling. The co-offenders who entered the dwelling fled when confronted by the occupant, taking her mobile phone.

  • What was the appropriate objective seriousness of the two substantive charges, having regard to the offender's particular role?
  • How should Form 1 matters (Goods in Custody and Larceny of a Motor Vehicle) meaningfully affect the sentence?
  • What weight should be given to a lengthy criminal history, balanced against disadvantaged background and Bugmy considerations?
  • Whether special circumstances existed to justify a non-parole period less than the statutory default of one-half of the total sentence.
  • How to structure the aggregate sentence, including backdating and concurrency.

Decision

Lerve DCJ assessed both substantive offences as moderately below mid-range in objective seriousness. In reaching that view, the court noted several mitigating features: the offending was random and opportunistic; the entry to the garage was limited in scope; the co-offenders left the dwelling immediately when confronted; the offender did not enter either premises; and only one item (a mobile phone) was taken from the dwelling. The offender's moral culpability was assessed as lower than that of Dugdale and Dixon given his role as driver and lookout rather than as the person who physically entered the premises.

The court applied the guideline judgment on Form 1 matters and confirmed that the Larceny of a Motor Vehicle, in particular, had to have a meaningful impact on the indicative sentence for the s 111(2) charge. The matters on the s 166 Certificate (Being Carried in a Stolen Conveyance and Larceny) were found to have little impact on the ultimate sentence.

On subjective factors, the court acknowledged the offender's lengthy criminal history, noting the principles in Bugmy v The Queen and Veen v The Queen (No. 2). A deprived background does not diminish the need for general deterrence indefinitely, but it remained a relevant consideration in assessing moral culpability. The offender received the full 25 per cent discount for the utilitarian value of his guilty pleas, which had been entered in the Local Court and adhered to at the District Court hearing.

Special circumstances were found to exist, resulting in a non-parole period of two-thirds of the total sentence rather than the statutory default. The court backdated the sentence commencement to 26 August 2019 and imposed wholly concurrent sentences for the s 166 Certificate matters, given their close factual connection to the Form 1 offences.

Orders Made

  • The offender was convicted of all matters to which he pleaded guilty, including the s 166 Certificate matters.
  • An aggregate sentence of 3 years and 3 months was imposed, with a non-parole period of 2 years and 2 months.
  • The non-parole period commences 26 August 2019 and expires 25 October 2021.
  • The parole period of 13 months commences 26 October 2021 and expires 25 November 2022.
  • Form 1 matters were taken into account in determining the indicative sentence for the s 111(2) charge.
  • The court recommended the offender's release to parole at the expiration of the non-parole period.
  • Special circumstances were found, resulting in the non-parole period being two-thirds of the total sentence.

Key Takeaways

  • An offender's role in a joint criminal enterprise, specifically acting as driver and lookout rather than physically entering premises, is a relevant factor in reducing that offender's moral culpability relative to co-offenders.
  • Under the guideline judgment on Form 1 matters (Attorney General's Application No. 1 of 2002), a Form 1 charge of Larceny of a Motor Vehicle must have a meaningful, not merely nominal, impact on the sentence imposed for the principal offence.
  • Bugmy principles remain relevant in sentencing offenders with deprived backgrounds and lengthy criminal histories, though they operate alongside, not instead of, considerations of general deterrence.
  • Where special circumstances are found, the court may depart from the statutory default non-parole period, and the reasons must be articulated in the sentencing remarks.
  • Sentences for offences on a s 166 Certificate that are closely factually connected to Form 1 charges may appropriately be ordered to run wholly concurrently with the principal sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 111(2), 112(2), 117, 154A(1)(b), 154F, 527C(1)(c)
- Criminal Procedure Act 1986 (NSW), s 166
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 37

Cases:
- Attorney General's Application Pursuant to s 37 of the Crimes (Sentencing Procedure) Act 1986 No. 1 of 2002 (2002) 56 NSWLR 146
- Bugmy v The Queen [2013] HCA 37
- Veen v The Queen (No. 2) (1988) 164 CLR 465
- Hunter v R [2011] NSWCCA 141
- Beale v R [2015] NSWCCA 120
- Hart v R [2014] NSWCCA 172
- Imbornone v R [2017] NSWCCA 144
- Jackson v R [2010] NSWCCA 162
- R v Despotovski [2010] NSWDC 110