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District Court 21 May 2020

R v Maher

[2020] NSWDC 410

Assault & violenceTheft & propertyFirearms & weapons

Citation: R v Maher [2020] NSWDC 410
Court: District Court of New South Wales
Date: 21 May 2020
Judge(s): Buscombe DCJ

Background

The offender pleaded guilty to three substantive offences and asked the court to take two further offences into account on a Form 1 (a procedural mechanism that allows related offences to be considered at sentencing without recording additional convictions). The offences arose from two separate incidents in April and May 2018 at a residential property in Pitt Town, where an extended family group lived across a main house and a granny flat.

In the early hours of 19 April 2018, the offender and an unidentified male entered the main house wearing balaclavas and gloves. The offender was armed with a crowbar and his co-offender carried a pistol. They forced the homeowners to open a safe, striking both of them with the crowbar in the process. When a family member intervened, a violent struggle followed, during which the offender stabbed the intervening occupant three times in the leg and bit him on the arm. The co-offender cleared out the safe and pointed a firearm at the occupants to secure the offender's escape. Items stolen included approximately $10,000 cash, a $16,000 engagement ring, jewellery, and personal documents.

DNA evidence linked the offender to items recovered at the scene and to a balaclava found nearby days later. He was formally charged on 21 July 2018 while already in custody on an unrelated matter.

  • What was the appropriate sentence for the specially aggravated break and enter offence under s 112(3) of the Crimes Act 1900 (NSW), which carries a maximum of 25 years imprisonment and a standard non-parole period of seven years?
  • What were the appropriate sentences for two counts of assault occasioning actual bodily harm under s 59(1) of the Crimes Act 1900 (NSW)?
  • What discount applied for early guilty pleas across all counts?
  • How should the sentences be structured in aggregate, taking into account the Form 1 offences?

Decision

Buscombe DCJ assessed the specially aggravated break and enter as a seriously aggravated offence. The court noted several objective aggravating features: planning was evident from the offender's apparent knowledge of the safe, the use of disguises, and the carrying of weapons. The offence occurred at night in the victims' home, violence was used against multiple occupants, significant property was stolen, and the offender intentionally wounded an occupant who intervened. The co-offender's use of a firearm, while not directly attributable to this offender, formed part of the factual context.

The court applied the sentencing principles from The Queen v Ponfield (1999) 48 NSWLR 327 in assessing objective seriousness, and had regard to the purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) and the aggravating and mitigating factors under s 21A of that Act. The victim impact statement from one of the homeowners was also before the court and informed the sentencing exercise.

A 25 percent discount was applied to each count for early guilty pleas. The indicative starting point for the break and enter was six years imprisonment with a non-parole period of three and a half years. For each assault occasioning actual bodily harm count, the starting point was two years imprisonment, with indicative sentences of 18 months each after the plea discount.

The court imposed an aggregate sentence rather than cumulative individual sentences, which is a common approach where offences arise from the same criminal episode. The aggregate term was set at seven years imprisonment with a non-parole period of four and a half years, dating from 26 July 2018. Two common assault matters that had also been before the court were withdrawn and dismissed.

Orders Made

  • Count 1 (specially aggravated break and enter, taking Form 1 offences into account): indicative sentence of 6 years imprisonment; indicative non-parole period of 3 years and 6 months; 25% discount applied for early guilty plea.
  • Count 2 (assault occasioning actual bodily harm, first complainant): indicative sentence of 18 months imprisonment, including 25% discount for early guilty plea.
  • Count 3 (assault occasioning actual bodily harm, second complainant): indicative sentence of 18 months imprisonment, including 25% discount for early guilty plea.
  • Aggregate sentence of 7 years imprisonment imposed, with an aggregate non-parole period of 4 years and 6 months, commencing 26 July 2018 and expiring 25 July 2025; non-parole period expiring 25 January 2023.
  • Two common assault matters withdrawn and dismissed.

Key Takeaways

  • The District Court treated overnight home invasion involving multiple victims, pre-planning, weapons, and intentional wounding as placing the specially aggravated break and enter offence at a high level of objective seriousness, warranting a substantial head sentence well above the seven-year standard non-parole period.
  • A 25 percent discount for early guilty pleas was applied consistently across all three substantive counts, reflecting the utilitarian value of those pleas to the criminal justice system.
  • Under s 112(3) of the Crimes Act 1900 (NSW), the specially aggravated form of break and enter applies where an offender intentionally wounds an occupant during the commission of the offence, and this carries a maximum of 25 years imprisonment.
  • Sentencing for multiple offences arising from the same criminal episode by means of an aggregate sentence allowed the court to reflect the overall criminality without mechanically accumulating each individual term.
  • Objective aggravating features identified under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW), including that the offences occurred at the victims' home, were applied to elevate the sentence beyond what the offences in isolation might otherwise have attracted.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 59(1) (assault occasioning actual bodily harm), 112(3) (break and enter in circumstances of special aggravation)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A (purposes of sentencing), 21A (aggravating and mitigating factors)

Cases:
- The Queen v Ponfield (1999) 48 NSWLR 327
- Bugmy v The Queen (2013) 249 CLR 571