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District Court 6 April 2020

R v Grimes

[2020] NSWDC 172

Assault & violenceFraud & dishonestyTheft & property
SENTENCING AGGRAVATED BREAK AND ENTER STEAL MOTOR VEHICLE OBTAIN BENEFIT BY DECEPTION. SENTENCING RELEVANT FACTORS ON SENTENCING EARLY GUILTY PLEA

Citation: R v Grimes [2020] NSWDC 172
Court: District Court of New South Wales
Date: 6 April 2020
Judge: Haesler SC DCJ

Background

In the early hours of 12 March 2019, the offender participated in an armed group invasion of a residential property at Barrack Heights. The group entered the property believing drugs were stored there. Three occupants were confronted, forced to lie on the ground, and subjected to sustained demands for drugs and money over an extended period. Threats were made, including a threat to shoot one occupant in the head. A knife was taken from the home and used by the offender, and items including a wallet, jewellery, cash, and a motorbike were stolen.

Following the incident, the offender used a stolen bank card to make purchases at a Coles Express and McDonald's, conduct captured on CCTV. A search warrant executed at the offender's home recovered the victim's wallet. On arrest, the offender immediately told police he had been coerced into participating, stating the others had threatened him, his fiancée, and his daughter with a firearm.

The offender, who is Aboriginal, pleaded guilty in the Local Court to aggravated break, enter and commit larceny (s 112 Crimes Act 1900), stealing a motor vehicle (s 154AA), and two counts of obtaining a benefit by deception (s 192E(1)). The matter came before the District Court for sentencing on an aggregate basis, conducted via the virtual court system during the early stages of the COVID-19 pandemic.

  • What weight should be given to the offender's claim of duress, which did not exculpate but was raised as mitigation?
  • How should the offender's background, including disadvantage recognised under the Bugmy principles applicable to Aboriginal offenders, affect the sentence?
  • Whether special circumstances existed to justify a longer parole period, specifically to facilitate access to a full-time drug rehabilitation program.
  • How to structure an aggregate sentence that preserved the 25% utilitarian discount for early guilty pleas across multiple offences, applied totality, and accounted for sentences already imposed in the Local Court.

Decision

Objective seriousness. Haesler SC DCJ assessed the offending as serious. The invasion occurred at night at an occupied residential home, involved an armed group, resulted in three people being detained and subjected to threats including a threat to kill, and caused what the court described as significant fear and disruption. The standard non-parole period for the principal offence (s 112) of five years anchored the analysis. The court found that only a full-time custodial sentence of meaningful length could reflect the gravity of the conduct, notwithstanding the absence of victim impact statements.

Duress. The court accepted that the offender had been threatened into participating. However, the agreed facts acknowledged that the offender had opportunities to call police, to refuse to join the group, and to leave, but on two occasions he returned. Duress was treated as a relevant mitigating factor affecting moral culpability, but not one that substantially moderated the objective seriousness of the offending. The court relied on Giang v R [2017] NSWCCA 25 and R v Z [2005] 2 AC 467 in treating non-exculpatory duress as going to personal rather than objective culpability.

Bugmy factors and background. Applying the principles from Bugmy v The Queen (2013) 249 CLR 571, the court took into account the offender's severe disadvantage and the fact that he had never lived a normal community life. These matters were treated as relevant to moral culpability and the appropriate weight to be given to retributive and deterrent considerations, though the court emphasised they could only go so far. The court also noted the obligations identified in Munda v Western Australia (2013) 249 CLR 600 to vindicate victims' dignity and protect the community.

Special circumstances and structure. The court found special circumstances under the Crimes (Administration of Sentencing) Act 1999, extending the parole period beyond the statutory default to maximise the opportunity for the offender to attend a full-time drug rehabilitation program on release. Each sentence was reduced by 30%: 25% for the utilitarian value of the early guilty pleas and 5% for past assistance to authorities. Accumulation was kept modest given the offences formed a single course of criminal conduct.

Orders Made

  • Aggravated break, enter and commit larceny: 2 years imprisonment with a non-parole period of 1 year and 6 months.
  • Steal motor vehicle: 8 months imprisonment.
  • Two counts of obtaining benefit by deception: 4 months imprisonment (each).
  • Aggregate sentence: 3 years and 9 months imprisonment.
  • Non-parole period: 2 years, commencing 12 April 2019 and expiring 11 April 2021.
  • Balance of sentence (parole period): 1 year and 9 months, commencing 12 April 2021 and expiring 11 January 2023.
  • Special circumstances found to facilitate, if possible, attendance at a full-time drug rehabilitation centre on release.

Key Takeaways

  • Non-exculpatory duress, where it falls short of a complete defence, is nonetheless a recognised mitigating factor at sentencing. Under the authority of Giang v R and R v Z, it bears on the offender's personal moral culpability rather than the objective gravity of the offence, and the weight it attracts is reduced where the offender had realistic opportunities to withdraw.

  • Bugmy principles confirmed that the severe disadvantage and deprivation experienced by Aboriginal offenders remain relevant at sentencing, but the District Court made clear those factors operate alongside, not in place of, the community's legitimate expectations of retribution and victim vindication.

  • Where multiple offences form a single continuous course of criminal conduct with overlapping facts, accumulation of sentences need not be substantial. The court applied the totality principle to prevent the guilty plea discount from being eroded by accumulation across four charges.

  • A finding of special circumstances can be supported where the offender has a demonstrable need for structured rehabilitation. Here, the court extended the parole period specifically to allow access to a full-time residential drug rehabilitation program.

  • Sentencing courts carry an obligation, identified in Munda, to use the sentence to vindicate victims of home invasions and to discourage community members from resorting to self-help and retaliatory conduct in response to such crimes.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): ss 105A, 112, 154AA, 192E(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW): ss 21A(3)(d), 25D, 30D
- Crimes (Administration of Sentencing) Act 1999 (NSW)
- Children's (Criminal Detention) Act 1987 (NSW)

Cases
- Bugmy v The Queen (2013) 249 CLR 571
- Munda v Western Australia (2013) 249 CLR 600
- Giang v R [2017] NSWCCA 25
- Hili v The Queen (2010) 242 CLR 520
- Ryan v The Queen (2001) 206 CLR 267
- R v Z [2005] 2 AC 467
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- R v Windle [2012] NSWCCA 222
- Henry v R (1999) 46 NSWLR 346
- Tiknius v R (2011) 221 A Crim R 365
- R v Herring (1956) 73 WN (NSW) 203
- Brown v R [2020] VSC 60