Citation: R v Dumas [2020] NSWDC 520
Court: District Court of New South Wales
Date: 30 April 2020
Judge: King SC DCJ
Background
The offender appeared for sentence on two offences committed in Macksville on 26 October 2018. The first was aggravated break and enter with commission of a serious indictable offence (stealing), in circumstances where he knew a person was present in the dwelling. The second was armed robbery of a service station attendant, carried out using a barbeque multi-tool and a knife.
At the time of the offences, the offender was on parole for four prior offences of aggravated break, enter and steal in company. His parole was revoked on 7 November 2018, backdated to the date of his arrest. The balance of that earlier parole term expired on 9 July 2019.
The offender had an extensive criminal history, was of Aboriginal descent, and had experienced significant childhood disadvantage. He pleaded guilty in the Local Court, and the agreed facts were placed before the sentencing judge.
Legal Issues
- What was the objective seriousness of each offence, and where did each fall on the range?
- What discount should be applied for the guilty plea, given it was entered approximately 14 months after arrest?
- Whether the new sentence should be backdated to the date of arrest, or commence from the expiry of the parole balance of term, and how that affected any finding of special circumstances.
- How subjective factors, including the offender's Aboriginal background, childhood disadvantage, institutionalisation, and drug dependence, should be weighed in sentencing.
- Whether parity with the co-offender's sentence was relevant.
Decision
His Honour assessed the aggravated break and enter offence as falling within the mid-range of objective seriousness. The offence was committed at 1am against an occupied residential dwelling, with the victim in close proximity at the time of entry. The armed robbery was also assessed as objectively serious: the offender presented both a barbeque multi-tool (accepted as capable of inflicting significant injury) and a knife to a lone attendant in the early hours of the morning.
A 25% discount for the guilty plea was applied, following the principles in R v Thomson; R v Houlton. Although 14 months elapsed between arrest and plea, the plea was entered in the Local Court and its utilitarian value was accepted as attracting the full standard discount.
The court declined to backdate the new sentence to the date of arrest, as the Crown had suggested was one available option. Instead, the sentence was ordered to commence on 10 July 2019, the day after the balance of the earlier parole term expired. The court acknowledged this approach required a finding of special circumstances, given the additional time the offender had already spent in custody during the revoked parole period. Special circumstances were found and the non-parole period was adjusted accordingly.
His Honour gave weight to the offender's Aboriginal background and the effects of childhood deprivation and trauma, consistent with the principles in Bugmy v The Queen and R v Fernando. The court also noted the offender's significant institutionalisation and drug dependence, treating these as factors bearing on rehabilitation prospects and the design of the sentence.
Orders Made
- Sentence to commence 10 July 2019
- Non-parole period: 2 years, 9 months and 21 days, expiring 30 April 2022
- Balance of term: 1 year, 2 months and 9 days
- Total term: 4 years, expiring 9 July 2023
Key Takeaways
- Where a new sentence commences at the expiry of a revoked parole balance of term rather than from the date of arrest, the period spent in custody during the revoked term may support a finding of special circumstances, permitting a longer-than-standard balance of term.
- A 25% utilitarian discount for a guilty plea remains available even where approximately 14 months elapsed between arrest and plea, provided the plea was entered in the Local Court and its practical utility to the administration of justice is established, following Thomson and Houlton.
- The District Court applied Bugmy and Fernando principles in giving weight to the offender's Aboriginal background and the ongoing effects of severe childhood disadvantage, treating those factors as relevant to moral culpability and prospects of rehabilitation.
- A barbeque multi-tool was accepted as capable of constituting an offensive weapon capable of inflicting significant injury in the context of an armed robbery charge under s 97(1) of the Crimes Act 1900.
- Committing essentially the same category of offences while on parole for prior offences of the same nature was treated as a significant aggravating feature, relevant both to the commencement date of the sentence and to the overall assessment of the offender's circumstances.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 97(1), 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases
- Beale v R [2015] NSWCCA 120
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Callaghan v R [2006] NSWCCA 58
- R v Fernando [2002] NSWCCA 28
- R v Henry & Ors [1999] NSWCCA 111
- R v Huynh [2003] NSWCCA 239
- R v McVittie [2002] NSWCCA 344
- R v Moffatt (1990) 20 NSWLR 114
- R v Thomson; R v Houlton (2000) 49 NSWLR 383