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District Court 7 April 2020

R v Savage

[2020] NSWDC 398

Assault & violenceTheft & property
CRIME VIOLENT OFFENCES DETAIN FOR ADVANTAGE PROPERTY OFFENCES TAKE AND DRIVE A CONVEYANCE

Citation: R v Savage [2020] NSWDC 398
Court: District Court of NSW
Date: 7 April 2020
Judge: Buscombe DCJ

Background

The offender appeared before the District Court for sentencing on two offences arising from a violent incident on 29 May 2019 at South Windsor: detaining a person without consent with intention to commit intimidation, with actual bodily harm occasioned (section 86(3) of the Crimes Act 1900), and driving a conveyance knowing it was taken without the owner's consent (section 154A(1)(b)). A robbery arising from the same incident was placed on a Form 1 for the court to take into account on the detaining charge.

The detaining offence involved a pre-arranged scheme in which the victim was lured to a motel room and subjected to a prolonged, violent assault by the offender and a co-accused over approximately three and a half hours. The victim was beaten, driven around in his own car while his bank cards were used at ATMs, and ultimately robbed of drugs, cash, and other property. His car was later found burnt out.

The court also heard a sentence appeal against a Local Court sentence of 23 months imprisonment (non-parole period of 15 months) imposed for a break, enter and steal offence committed between 15 and 17 May 2019 at a residential property in Seven Hills, where the offender stole items totalling approximately $2,050 in value.

Legal Issues

  • What sentence was appropriate for the detaining offence under section 86(3), taking into account the Form 1 robbery?
  • What sentence was appropriate for the offence of driving a conveyance without the owner's consent under section 154A(1)(b)?
  • Whether the Local Court sentence for break, enter and steal was manifestly excessive or otherwise infected by error, and if so, what sentence should be substituted?
  • How should the sentences be structured, including questions of accumulation, concurrency, and whether special circumstances existed to justify a longer parole period?

Decision

Break, Enter and Steal (Sentence Appeal)

Buscombe DCJ assessed the objective seriousness of the break, enter and steal offence as below the notional mid-range, but not at the very bottom of the range (at [40]). There was little planning and limited damage to the property, though the stolen items included property of some sentimental value and were not recovered (at [39]). The starting point before the 25 per cent plea discount was two years imprisonment, producing a sentence of 18 months with a non-parole period of 11 months (at [77]). The appeal was allowed and the Local Court sentence was varied accordingly (at [79]).

Detaining Offence

The court found that the co-accused Blair had a greater degree of involvement and was the primary planner, while the offender's participation was characterised as more opportunistic (at [42]). It was Blair who struck the victim with a chrome metal bar, though the offender also struck the victim (at [42]). The detention lasted around three and a half hours and the victim sustained significant, though not upper-end, actual bodily harm (at [43]). The court assessed the detaining offence's objective seriousness as a little below mid-range (at [44]). The Form 1 robbery was not treated as substantially adding to the sentence, as it was regarded as part and parcel of the detaining offence itself (at [71]). After applying a 25 per cent plea discount to a starting point of five years, the court imposed four years imprisonment with a non-parole period of two years and six months (at [82]-[83]).

Drive Conveyance

The objective seriousness of the vehicle theft offence was also assessed as a little below mid-range (at [45]). The vehicle was recovered but in a burnt-out state, though there was no suggestion the offender was responsible for burning it (at [45]). After the plea discount, the court imposed a sentence of one year and one month with a non-parole period of eight months (at [80]).

Subjective Circumstances and Structure of Sentences

The offender's significant adult criminal history, which included prior offences for larceny, motor vehicle theft, dishonest obtaining of property, and aggravated break and enter, was treated as disentitling him from leniency (at [47]-[48]). Committing the offences while on parole and on bail was identified as a statutory aggravating factor (at [50]). The court found the offender was genuinely remorseful and accepted his evidence on that point (at [65]). However, rehabilitation prospects were assessed as no better than guarded, given his criminal history, assessed medium to high risk of reoffending, and entrenched drug use (at [67]). Special circumstances were found to justify a longer parole period, given the significant rehabilitation work anticipated upon release (at [68]). The sentences were partially accumulated, producing an overall term of four years and five months with a total non-parole period of two years and eleven months, commencing 4 August 2019 and expiring 3 January 2024 (at [84]-[85]).

Orders Made

  • Sentence appeal allowed; the break, enter and steal sentence varied to 18 months imprisonment with a non-parole period of 11 months, commencing 4 August 2019, expiring 3 February 2021 (non-parole period expiring 3 July 2020).
  • Drive conveyance offence: sentenced to one year and one month imprisonment with a non-parole period of eight months, commencing 4 November 2019, expiring 3 December 2020 (non-parole period expiring 3 July 2020).
  • Detaining offence: sentenced to four years imprisonment with a non-parole period of two years and six months, commencing 4 January 2020, expiring 3 January 2024 (non-parole period expiring 3 July 2022).
  • Overall total sentence of four years and five months; total non-parole period of two years and eleven months; earliest parole eligibility date of 3 July 2022.
  • Sequences 6 and 7 withdrawn and dismissed on the section 166 certificate.

Key Takeaways

  • In assessing individual culpability within a joint criminal enterprise, the District Court applied the established principle that each participant is equally responsible for the enterprise's acts, but that individual sentencing must be calibrated to that particular offender's own conduct. Here, the offender's more opportunistic role and lesser physical involvement distinguished his sentence from the primary co-accused (at [41]-[42]).

  • Where a Form 1 offence arises from substantially the same facts as the principal offence, it may have limited additional impact on the sentence. Buscombe DCJ treated the robbery as part and parcel of the detaining conduct and did not allow it to substantially increase the penalty (at [71]).

  • A finding of special circumstances under the Crimes (Sentencing Procedure) Act was warranted where the offender faced significant drug rehabilitation needs upon release and where the sentence was partially accumulated on earlier terms, resulting in a longer-than-standard parole period (at [68]).

  • Committing offences while on parole and on bail simultaneously was treated as an aggravating factor and weighed against the offender, alongside a substantial adult criminal history (at [50]).

  • Genuine remorse, demonstrated through consistent accounts to report writers and evidence before the court, was accepted as a mitigating factor, though it did not displace the assessment that rehabilitation prospects were guarded given the offender's entrenched drug use and history of reoffending (at [65], [67]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 86(3), 154A
- Crimes (Sentencing Procedure) Act (NSW), s 3A

Cases
- R v Ponfield (1999) 48 NSWLR 327
- TL v R [2017] NSWCCA 308