Citation: Regina v Caine FOX [2020] NSWDC 329
Court: District Court of New South Wales
Date: 3 July 2020
Judge(s): Lerve DCJ
Background
The offender pleaded guilty at Wagga Wagga Local Court in March 2020 to a large number of offences committed across a six-week period between late December 2018 and mid-February 2019. The offending spanned two separate charge sheets and included multiple break-and-enter offences at residential premises, theft of motor vehicles, use of stolen bank account credentials to transfer funds, dealing with proceeds of crime, and dangerous driving during a police pursuit.
The most serious charge was aggravated break, enter and steal (persons present) at a residential property at Glenfield Park in February 2019, which carried a maximum penalty of 20 years imprisonment and a standard non-parole period (SNPP) of five years. Eight further matters were placed before the court on a Form 1 document to be taken into account when sentencing on that charge. Those Form 1 matters included dishonestly obtaining property by deception, unlawful entry on enclosed lands, being carried in a stolen conveyance, intentionally throwing an object at a vehicle, and dealing with proceeds of crime.
The prosecution and defence agreed on the facts. The offender was entitled to a 25 per cent discount on sentence for the utilitarian value of his early guilty pleas, which were maintained at the sentence hearing.
Legal Issues
- What were the appropriate individual sentences for each substantive offence, taking into account maximum penalties and (where applicable) the SNPP?
- What weight should be given to the Form 1 matters when sentencing on the aggravated break-and-enter charge?
- Whether the principles from Bugmy v The Queen [2013] HCA 37, relating to the relevance of social disadvantage and background to sentencing, applied to reduce the offender's moral culpability.
- Whether special circumstances existed to justify a non-parole period shorter than the standard three-quarters proportion of the total sentence, and if so, why.
Decision
Lerve DCJ sentenced the offender across all charges, applying a one-step instinctive synthesis that used the maximum penalty and (where applicable) the SNPP as principal guideposts. The prosecution conceded that the eight Form 1 matters would have little practical effect on the ultimate sentence, and the court addressed the gravity of each matter in turn before fixing the aggregate term.
Individual sentences ranged from 15 months (break and enter with intent) to a non-parole period of one year and ten months with a balance of term of one year and two months (aggravated break enter and steal, taking the Form 1 matters into account). The break-and-enter of the unoccupied Coolamon residence was characterised as a typical, unremarkable example of the offence. The aggravated offence, committed in company while persons were present, was treated as the most serious matter and anchored the Form 1 calculation.
The court applied the Bugmy principles, acknowledging that the offender's background of deprivation and disadvantage was relevant to assessing moral culpability, though the reasons do not elaborate the background further in the excerpted text. Special circumstances were found to exist, principally because of the need for intensive supervision during reintegration into the community, the need for rehabilitation in relation to substance use, and the partial accumulation of sentences across the two charge sheets. Those factors justified setting the non-parole period at approximately 62 per cent of the total sentence rather than the standard 75 per cent.
Orders Made
- The offender was convicted on all charges to which he pleaded guilty.
- For the driving while unlicensed charge (s 166 certificate): convicted, no further penalty imposed.
- For driving in a manner dangerous during police pursuit: disqualified from driving for the automatic period.
- An aggregate sentence of 5 years and 3 months was imposed, with a non-parole period of 3 years and 3 months.
- The non-parole period runs from 7 April 2019 and expires 6 July 2022.
- The balance of term of 2 years runs from 7 July 2022 and expires 6 July 2024.
- Release to parole at expiration of the non-parole period was recommended.
Key Takeaways
- The District Court applied the standard Bugmy principles, treating the offender's social disadvantage and background as a mitigating factor relevant to moral culpability across a complex, multi-offence sentencing exercise.
- A full 25 per cent utilitarian discount was applied where guilty pleas were entered at the Local Court level and maintained at the District Court sentence hearing.
- Form 1 matters are required to be assessed for gravity in accordance with the guideline judgment in AG's Application No. 1 of 2002 (2002) 56 NSWLR 146; in this case, the prosecution conceded that eight Form 1 matters would have minimal practical impact on the overall sentence.
- Special circumstances were established on the basis of the need for supervised reintegration, substance-use rehabilitation, and the structural effect of partial accumulation of sentences, reducing the non-parole period to approximately 62 per cent of the aggregate term.
- Where a standard non-parole period applies (here, five years for aggravated break enter and steal under s 112(2)), the sentencing court treats it as a guidepost within a one-step instinctive synthesis, alongside the applicable maximum penalty.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW): ss 112(1), 112(2), 113(1), 154A(1)(a), 51B(1), 192E(1)(b), 193C(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW): s 166
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 (Form 1 Guideline Judgment)
- Bugmy v The Queen [2013] HCA 37
- Hampton v R [2014] NSWCCA 131
- Hamilton v R [2016] NSWCCA 59
- Hunter v R [2011] NSWCCA 141
- Little v R [2018] NSWCCA 63
- R v Niass (unreported, NSWCCA, 16 November 1988)
- Refaieh v R [2018] NSWCCA 72