Citation: R v Winslade [2020] NSWDC 545
Court: District Court of New South Wales
Date: 1 June 2020
Judge(s): King SC DCJ
Background
The offender appeared for sentence on nine offences committed on 28 January 2018, approximately two and a half months after he had been sentenced in the Local Court for common assault and being armed with intent to commit an indictable offence. Both of those earlier matters arose from a February 2017 incident in which he punched his former partner to the ground and then produced a knife to deter bystanders from assisting her. For those offences, he had received a section 9 good behaviour bond of 18 months and a section 12 suspended sentence of eight months respectively.
The nine fresh offences related to a separate violent incident and included possession of multiple prohibited or shortened firearms, handling an explosive (smokeless gun powder) without authority, common assault, using an offensive weapon with intent to intimidate, and acting with intent to influence a witness. The court was also required to deal with the formal breaches of the two earlier bonds arising from the commission of these new offences.
The matter had a protracted procedural history. The offender was committed for trial in August 2018, with pleas of guilty to five charges entered in June 2019 only after a trial had been allocated and was about to proceed. Pleas to the remaining four charges followed in January 2020, again on the eve of a second trial, after the first was aborted due to his trial counsel withdrawing on ethical grounds.
Legal Issues
- What weight should be given to the guilty pleas, given the late stage at which each was entered?
- How should the court assess the objective seriousness of the firearms, explosives, and intimidation offences?
- What role did the offender's breach of existing bonds play in the sentencing exercise?
- How should subjective factors, including background, family support, and prospects of rehabilitation, be weighed against significant general and specific deterrence considerations?
- What was the appropriate aggregate sentence under the Crimes (Sentencing Procedures) Act 1999?
Decision
King SC DCJ found the firearms offences to be of considerable objective seriousness. The offender possessed multiple shortened firearms, including a revolving carbine and a shotgun, together with smokeless gun powder, without any authorisation. The possession of a shortened firearm attracts a standard non-parole period of four years, which the judge treated as a relevant guidepost even in the context of a guilty plea.
The late timing of the pleas substantially reduced the utilitarian discount available to the offender. The pleas entered in June 2019 came only after a trial had been listed and allocated to a courtroom, and those entered in January 2020 came after a second trial had already commenced. The court acknowledged the pleas nonetheless had some utilitarian value, sparing witnesses from giving evidence, but the discount was modest in the circumstances.
The court identified a significant need for both general and specific deterrence. The offender had committed these offences while already subject to supervision under a bond and a suspended sentence, and a pre-sentence report from only three days before the fresh offences recorded that he had failed to comply with supervision and had placed himself out of contact. An October 2017 pre-sentence report noted similar non-compliance. The court assessed him as a medium to high risk of reoffending.
Subjective factors, including the principles from Bugmy v R regarding the relevance of background and disadvantage, were considered, as was the available family support. These were weighed against the pattern of escalating offending and the offender's persistent disregard for court-ordered supervision. The court imposed an aggregate sentence, with the offender to be released on or about 27 January 2022, leaving approximately two years of parole supervision.
Orders Made
• Total sentence of six years, expiring 27 January 2024
• Approximately two years of supervision upon release (on or about 27 January 2022)
• Offender to remain in the AVL area
Key Takeaways
- Guilty pleas entered only after a trial has been listed, allocated, and commenced attract a significantly reduced utilitarian discount, reflecting the limited practical benefit to the justice system at that stage.
- Under the Firearms Act 1996, possession of a shortened firearm (not a pistol) carries a maximum of 14 years' imprisonment and a standard non-parole period of four years, which remains a relevant sentencing benchmark even on a plea of guilty.
- Offending committed while subject to a good behaviour bond and a suspended sentence is treated as an aggravating feature, particularly where pre-sentence reports contemporaneous with the new offending record non-compliance with supervision conditions.
- The District Court applied Bugmy v R in considering the offender's background and personal circumstances, but found those matters did not displace the substantial need for deterrence arising from the nature and pattern of the offending.
- Persistent failure to engage with supervision, including ignoring correspondence and missing appointments with probation officers, was directly relevant to the court's assessment of reoffending risk and prospects of rehabilitation.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 33B(1)(a), 61, 93G(1)(a)(ii), 114(1)(a)
- Crimes (Sentencing Procedures) Act 1999 (NSW), ss 9, 12
- Explosives Act 2003 (NSW), s 6(1)
- Firearms Act 1996 (NSW), ss 7(1), 62(1)(b)
Cases:
- Bugmy v R (2013) 249 CLR 571
- Cross v R [2016] NSWCCA 214
- R v Brown [2006] NSWCCA 249
- R v Fernando [2002] NSWCCA 28
- R v Lachlan [2015] NSWCCA 178
- R v Mahmud [2010] NSWCCA 219