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District Court 27 August 2020

R v Mongta-Kelly

[2020] NSWDC 602

Assault & violenceTheft & propertyPublic order & justice offences
CRIME SENTENCE STEAL MOTOR VEHICLE ASSAULT DESTROY PROPERTY BY FIRE TOTALITY OF CRIMINALITY

Citation: R v Mongta-Kelly [2020] NSWDC 602
Court: District Court of New South Wales
Date: 27 August 2020
Judge: Norrish QC DCJ

Background

The offender pleaded guilty to 15 counts on an indictment originally containing 19 counts, with the remaining counts dealt with by way of Form 1 (that is, taken into account at sentencing without a separate conviction). The offending spanned roughly ten weeks between January and April 2019, and covered a wide geographic area including the Southern Illawarra, Shoalhaven, and the far South Coast of New South Wales.

The counts included two counts of stealing a motor vehicle, three counts of break, enter and steal, six counts of aggravated break, enter and steal in company, one common assault, one count of destroying property by fire (a motor vehicle), and two counts of taking and driving a vehicle without consent. An additional 13 matters appeared on five Forms 1, several of which were themselves substantial, including two further aggravated break, enter and steal offences.

The offender initially entered not guilty pleas and the matter proceeded to a judge-alone trial at Nowra before guilty pleas were entered on the third day, following negotiations that resulted in certain counts being moved to Forms 1. There was no psychiatric or psychological evidence before the court, and the offender did not give evidence, though he submitted a letter.

  • How should individual indicative sentences be set across 15 counts and 13 Form 1 matters, having regard to the objective seriousness of each offence and the standard non-parole periods applicable to the aggravated break, enter and steal charges?
  • How should the principle of totality be applied to produce an aggregate sentence that reflects the full criminality without being crushing?
  • What weight should be given to the offender's extensive criminal history (commencing at age 10), his institutionalisation, his disadvantaged and dysfunctional background, and his Aboriginality under the principles in Bugmy v The Queen?
  • How should the court approach parity with co-offenders who had already been sentenced?
  • Whether special circumstances existed justifying a departure from the standard ratio between the non-parole period and the balance of sentence under the Crimes (Sentencing Procedure) Act 1999.

Decision

His Honour assessed each of the six aggravated break, enter and steal counts (which carry a standard non-parole period of five years) as falling below the middle range of objective seriousness, to varying degrees. While the offending was not spontaneous, it was not professionally planned: the offender frequently left behind identifying material, used rudimentary methods of entry, and on some occasions did not use disguise. The court observed from CCTV footage that the offender appeared confident, determined, and not affected by drugs at the time of the Albion Park offences.

The court applied Bugmy v The Queen [2013] HCA 37, which establishes that the effects of profound deprivation and disadvantage in an Aboriginal offender's background do not diminish with repeated offending and must be given full weight at each sentencing. His Honour acknowledged the offender's deeply disadvantaged and dysfunctional background, his Aboriginality, and his extensive institutionalisation, but also noted the considerable criminal history dating from age 10. General and specific deterrence, protection of the community, and the need to avoid imposing a crushing sentence were all weighed.

Parity with co-offenders who had already been sentenced was considered, consistent with the principles in Postiglione v R and R v Holder. The court identified special circumstances, given the offender's institutionalisation and the need for an extended period of supervised parole to assist rehabilitation, and adjusted the non-parole period accordingly. The offender was also referred to the Drug Court for consideration for the Compulsory Drug Treatment Program.

The court imposed an aggregate sentence of nine and a half years imprisonment with a non-parole period of five years and three months, making the offender eligible for release to parole in September 2024.

Orders Made

  • Aggregate sentence of 9 years 6 months imprisonment, with a non-parole period of 5 years 3 months (parole eligibility: September 2024).
  • Indicative sentences imposed for each count, including (among others):
  • Count 2 (break, enter and steal, Albion Park): 2 years 6 months, non-parole 1 year 6 months
  • Count 5 (aggravated break, enter and steal, in company): 2 years, non-parole 1 year 2 months
  • Count 10 (aggravated break, enter and steal): 2 years 10 months, non-parole 1 year 7 months
  • Count 18 (aggravated break, enter and steal, with five Form 1 matters): 3 years 9 months, non-parole 2 years
  • Count 12 (common assault): 5 months
  • Count 3 (destroy property by fire): 2 years, non-parole 1 year
  • All matters listed on the section 166 certificate withdrawn and dismissed.
  • Offender referred to the Drug Court under Part 2A of the Drug Court Act 1998 for consideration for the Compulsory Drug Treatment Program.

Key Takeaways

  • Under Bugmy v The Queen [2013] HCA 37, the effects of childhood deprivation and disadvantage on an Aboriginal offender do not diminish with repeated offending; a sentencing court must give them full weight regardless of the length of the offender's criminal history.

  • The District Court confirmed that a standard non-parole period is a relevant guide in fixing a non-parole period, but does not dominate the exercise; consistent with Muldrock v R [2011] HCA 39, the court must consider all relevant factors including those in sections 21A and 44 of the Crimes (Sentencing Procedure) Act 1999.

  • Assessing objective seriousness requires individualised analysis of each offence; the court here found each aggravated break, enter and steal charge to fall below the mid-range despite some involving repeat incursions into the same premises.

  • Severe institutionalisation and the need for extended post-release supervision can constitute special circumstances, justifying adjustment of the non-parole period relative to the head sentence.

  • Where an offender is sentenced across a large number of counts spanning a short period, the totality principle requires the court to step back and ensure the aggregate sentence reflects the overall criminality without being disproportionate or crushing, particularly when co-offenders have already been sentenced at lower levels.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44, 54A(2), 54B(2)
- Children's (Criminal Proceedings) Act 1987 (NSW)
- Drug Court Act 1998 (NSW), Part 2A

Cases
- Bugmy v The Queen [2013] HCA 37
- Muldrock v R [2011] HCA 39
- Postiglione v R [1997] HCA 26
- Attorney-General's Application (No 1) (2002) 56 NSWLR 147
- Huynh v R [2005] NSWCCA 220
- R v Holder & Anor (1983) 3 NSWLR 245
- Pearce v The Queen (1998) 194 CLR 610
- Veen (No 2) v R (1988) 164 CLR 465
- Mill v R (1988) 166 CLR 59
- Munda v Western Australia [2013] HCA 38
- Johnson v R [2004] HCA 15
- R v Henry [1999] 46 NSWLR 346
- R v Ponfield & Ors [1999] NSWCCA 435
- Kentwell v R (No 2) [2015] NSWCCA 96
- R v Jimmy [2010] NSWCCA 60
- R v Lewis [2014