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District Court 4 June 2020

R v Bonnell

[2020] NSWDC 270

Assault & violenceTheft & propertyFirearms & weaponsPublic order & justice offences
YOUNG OFFENDER AGGREGATE SENTENCE

Citation: R v Bonnell [2020] NSWDC 270
Court: District Court of New South Wales
Date: 4 June 2020
Judge: Mahony SC DCJ

Background

The offender, a young man, pleaded guilty to a series of offences committed across two consecutive days in November 2019 in the Chatswood and Lane Cove areas of Sydney. The offending involved targeting young people in public, including a 14-year-old boy in school uniform at the Chatswood Interchange, a group of three teenagers in an adjacent laneway, and two further young people in Lane Cove the following afternoon.

The offences ranged from robbery in company and assault with intent to rob in company, to possession of a knife in a public place and being armed with intent to commit an indictable offence. In several incidents, a knife was produced and victims were threatened with serious violence. The offender acted alongside a co-offender throughout, and much of the conduct was captured on CCTV.

The offender had been in custody since his arrest on 7 November 2019. His criminal history was limited, comprising a prior conviction for property damage (dealt with by way of conviction only, with no additional penalty) and a larceny fine recorded in the Local Court. A psychologist's report and other supporting materials were tendered on his behalf at the sentence hearing.

  • What aggregate sentence was appropriate across multiple serious offences committed over two days?
  • Whether "special circumstances" existed under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 to justify a non-parole period shorter than the statutory default of three-quarters of the total term.
  • How the principles of totality, proportionality, and the overlap between related offences should be applied when setting an aggregate sentence.

Decision

Mahony SC DCJ sentenced the offender to an aggregate term of 2 years' imprisonment across the principal offences (robbery in company, armed with intent to commit an indictable offence, and two counts of assault with intent to rob in company). The knife possession charge was dealt with by conviction only, with no further penalty, under s 10A of the Crimes (Sentencing Procedure) Act 1999. Two additional offences (stealing from the person and common assault) were taken into account on a Form 1, meaning they were acknowledged in sentencing without separate convictions being recorded.

The court applied the principle of totality, drawing on authority including Pearce v R and R v Henry, to ensure the aggregate sentence reflected the overall criminality without being disproportionate. The court also considered that where offences form part of a single episode of criminality with common factors, the sentence for one offence may appropriately reflect the criminality of both.

The court found special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, warranting a non-parole period of 12 months rather than the standard three-quarters of the total term. The factors supporting this finding were the offender's youth, the fact that this was his first period of custody, and his mental health, drug and alcohol issues. These factors indicated a greater need for supervised support on release.

Orders Made

  • The offender was convicted of: custody of a knife in a public place (s 11C Summary Offences Act 1988); robbery in company (s 97(1) Crimes Act 1900); armed with intent to commit an indictable offence (s 114(1)(a) Crimes Act 1900); and two counts of assault with intent to rob in company (s 97(1) Crimes Act 1900).
  • For the knife possession offence (Sequence 3): convicted with no further penalty under s 10A of the Crimes (Sentencing Procedure) Act 1999.
  • For Sequences 6, 7, 11, and 12: an aggregate sentence was imposed under s 53A of the Crimes (Sentencing Procedure) Act 1999.
  • Non-parole period: 12 months, commencing 7 November 2019 and terminating 6 November 2020.
  • Balance of term: 12 months, from 7 November 2020 to 6 November 2021.
  • Form 1 matters taken into account: stealing from the person (attached to Sequence 6) and common assault (attached to Sequence 7).
  • Parole eligibility date: 6 November 2020.
  • Sequences 1, 2, 4, 5, and 9 withdrawn and dismissed.
  • Indicative sentences: Sequence 6 (robbery in company): 9 months; Sequence 7 (armed with intent): 6 months; Sequences 11 and 12 (assault with intent to rob in company): 18 months each.

Key Takeaways

  • The District Court applied the totality principle to impose an aggregate sentence that reflected the overall criminality of multiple related offences without producing a result disproportionate to the offending as a whole.
  • Under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, a court may reduce the non-parole period below the statutory default of three-quarters of the total term where special circumstances exist; here, youth, first-time custody, and mental health and substance issues together satisfied that threshold.
  • Where multiple offences arise from a single episode of criminality with common features, the sentencing court may structure individual sentences so that one reflects the criminality of related offences, reducing the need for disproportionately cumulative terms.
  • A conviction recorded under s 10A of the Crimes (Sentencing Procedure) Act 1999 results in no additional penalty beyond the conviction itself, which the court used here for the knife possession offence given the aggregate approach applied to the more serious charges.
  • Indicative sentences were recorded alongside the aggregate order, consistent with the requirement under s 53A to identify what sentence would have been imposed for each principal offence individually.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61, 94(b), 97(1), 114(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 44(2), 53A
- Summary Offences Act 1988 (NSW), s 11C
- Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Cases:
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
- Howard v R [2019] NSWCCA 109
- Pearce v R (1998) 194 CLR 610
- R v Henry (1999) 46 NSWLR 346
- R v Salieb [2005] NSWCCA 85
- Yildiz v R [2020] NSWCCA 69