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District Court 31 July 2020

R v Burns; R v Corkery

[2020] NSWDC 530

Assault & violenceTheft & propertyTraffic & drivingFirearms & weaponsPublic order & justice offences
CRIME SENTENCE MULTIPLE COUNTS OF LIKE OFFENCES FORM 1 MATTERS CRIME SPREE DEGREE OF ESCALATION OF OFFENDING

Citation: R v Burns; R v Corkery [2020] NSWDC 530
Court: District Court of New South Wales
Date: 31 July 2020
Judge(s): King SC DCJ

Background

Two co-offenders, Allan Burns and Zachary Corkery, came before the District Court for sentencing in respect of a series of offences committed between October and November 2017. The offending began in and around Griffith and concluded with both men being arrested at Wollongong. The court described the conduct as a "crime spree" involving a certain degree of escalating seriousness.

Burns faced 27 charges and Corkery faced 30 charges. The offences spanned a wide range of criminal conduct, including robbery in company, aggravated break and enter, stealing motor vehicles, dangerous driving, resisting arrest with an offensive weapon, throwing missiles at police, and possessing an unauthorised firearm. On many occasions the two men were co-offenders, though not always charged with identical offences.

A significant complicating feature for Corkery was that all of his offending occurred while he was on conditional liberty. He had been released on parole on 11 September 2017, only weeks before the crime spree began, and his parole was subsequently revoked in January 2018 after these charges were laid.

  • What aggregate sentences were appropriate for each offender across 27 and 30 charges respectively, having regard to the objective seriousness of each individual offence?
  • How should escalating seriousness across a continuing course of offending be assessed and reflected in sentencing?
  • What discount, if any, should be applied for guilty pleas entered at different stages of proceedings?
  • How should the statutory aggravating factor of conditional liberty (s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999) affect Corkery's sentence?
  • What indicative sentences and indicative non-parole periods were required for offences carrying a Standard Non-Parole Period (SNPP)?

Decision

His Honour King SC DCJ assessed the objective seriousness of each individual offence before arriving at an aggregate sentence for each offender. The court characterised the overall course of conduct as "outrageous and continuing," with particular note taken of the offenders' attempts to evade police using stolen motor vehicles and the assistance of the PolAir helicopter being required.

Burns received a discount of 25% on all charges, reflecting the utilitarian value of his early guilty pleas following committal for sentence on 31 October 2018. Corkery also received 25% on most charges, but only 10% on a group of offences (Group 5) where guilty pleas were not entered until the first day of trial following a prior listed trial date on which the matter was not reached.

For Corkery, the court applied the statutory aggravating factor under s 21A(2)(j) to all 30 offences, given that every offence was committed while he was on parole. The court noted that his parole had been revoked, with a balance of approximately four months and ten days running from the date of his arrest.

Both offenders had been in continuous custody since their arrest on 13 November 2017. The court also made referrals for both men to the Compulsory Drug Treatment Correctional Centre (CDTCC), reflecting an apparent drug-related dimension to their offending. Minimum licence disqualification periods were imposed for the driving-related offences, with the court expressly acknowledging the practical difficulties that licence disqualification poses for people released from custody in regional areas.

Orders Made

  • Aggregate sentences of imprisonment imposed for each offender (individual indicative sentences and indicative non-parole periods set out in schedules attached to the judgment).
  • Guilty plea discounts applied: 25% for Burns on all charges; 25% for Corkery on most charges; 10% for Corkery on Group 5 offences.
  • Minimum licence disqualification periods imposed for driving-related offences against each offender.
  • Both offenders referred to the Compulsory Drug Treatment Correctional Centre (CDTCC).
  • Compensation orders made against Corkery: $2,500 to Satishkumar Patel (for the destroyed motor vehicle) and $60 to the second victim (for a damaged bicycle lamp).
  • Form 1 matters taken into account in sentencing for both offenders.

Key Takeaways

  • The District Court confirmed that where multiple offenders are sentenced together across a large number of charges arising from a continuing course of conduct, an individual assessment of objective seriousness remains required for every offence, including indicative sentences and indicative non-parole periods where a SNPP applies, before an aggregate sentence is determined.

  • Conditional liberty at the time of offending is a statutory aggravating factor under s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999, and where every offence in a series is committed on parole, that factor applies to each and every charge.

  • The level of guilty plea discount turns on the stage at which the plea is entered: a plea following committal for sentence attracted 25% for its utilitarian value, while a plea entered on the first day of trial, after an earlier listed date was not reached, attracted only 10%.

  • Escalating seriousness across a crime spree, including efforts to evade police through dangerous driving and the use of offensive weapons, is a feature that can increase the objective seriousness of later offending within the same course of conduct.

  • Minimum disqualification periods for driving offences may be appropriate in circumstances where an offender is likely to be released into a regional area, given the practical impact of longer disqualification on rehabilitation and employment prospects after release from custody.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(j), 32
- Firearms Act 1996 (NSW)
- Road Transport Act 2013 (NSW)
- Road Transport (Driver Licensing) Regulation 2017 (NSW)

Cases
- Attorney General's Application No 1 of 2002 [2002] NSWCCA 518
- BP v R [2010] NSWCCA 159
- Bugmy v The Queen [2013] HCA 37
- Bullock v R [2016] NSWCCA 131
- Callaghan v R [2006] NSWCCA 58
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- Quintero v R; Carvajal v R; Salazar v R [2018] NSWCCA 190
- R v Fernando [2002] NSWCCA 28
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- R v Ibrahimi [2005] NSWCCA 153
- R v MAK (2006) 167 A Crim R 159
- R v McVittie [2002] NSWCCA 344
- R v Millwood [2012] NSWCCA 2
- R v Moffatt (1990) 20 NSWLR 114
- R v Todd (1982) 2 NSWLR 517