Citation: R v Wu [2020] NSWDC 75
Court: District Court of New South Wales
Date: 13 February 2020
Judge(s): Bourke SC DCJ
Background
The offender, Mr Yuwei Wu, appeared before the District Court for sentencing on 27 charges arising from a concentrated period of residential burglaries in Sydney's inner west and western suburbs between late November 2018 and early January 2019. The charges included 18 counts of break, enter and steal in residential premises, six counts of break and enter with intent to steal, one count of using an offensive weapon to prevent lawful detention, and two counts of resisting an officer in the execution of duty. A further 10 offences were listed on three Form 1 documents to be taken into account at sentencing.
The offending followed a clear pattern: the offender targeted residential homes, typically while occupants were out, and stole jewellery, watches, cash, and electronics. Items stolen across the series were of significant combined value. On one occasion, the offender entered the home of an 84-year-old woman at night and moved through the house while she hid in terror on the floor of her bedroom, though he left without taking any property. In a separate incident, the offender used an offensive weapon during an encounter with police who attempted to detain him.
The offender pleaded guilty at an early stage to all charges. He was a first-time offender with no prior criminal history. His family remained in China, and his English was limited, both factors that bore on the sentencing exercise.
Legal Issues
- What aggregate head sentence and non-parole period were appropriate given the number and seriousness of the offences?
- How should the principle of totality be applied to avoid an unjust or crushing sentence across a large number of charges?
- Did special circumstances exist to justify a variation in the ordinary ratio between the head sentence and the non-parole period?
- What weight should be given to the early guilty pleas, the offender's remorse, and the contextual and out-of-character nature of the offending?
Decision
The court accepted that the offender was entitled to a 25% discount on each sentence reflecting the utilitarian value of his early guilty pleas. His Honour found genuine remorse and assessed the risk of reoffending as low, characterising the conduct as highly unusual, contextual, and out of character. Personal deterrence was therefore afforded limited weight in the sentencing calculus.
Indicative sentences for the individual substantive offences ranged from two years and three months to three years and two months imprisonment. Taken cumulatively, these indicative terms totalled a figure substantially exceeding the ultimate sentence imposed. The court applied the totality principle from Mill v R (1988) 166 CLR 59 to ensure the aggregate sentence was just and appropriate rather than crushing. An aggregate head sentence of six years imprisonment with a non-parole period of three years was imposed, both commencing on 17 January 2019.
Special circumstances were found to justify extending the non-parole period ratio beyond the statutory default. The court identified two bases: this was the offender's first period in custody, and his experience of custody would be more onerous than usual because his family remained overseas and his limited English would restrict both social connection and access to rehabilitation programs.
The court was satisfied that the threshold under section 5 of the Crimes (Sentencing Procedure) Act 1999 had been crossed and that no sentence other than full-time imprisonment was appropriate. No contrary submission was made by the defence on that point.
Orders Made
- Aggregate head sentence of six years imprisonment, commencing 17 January 2019 and expiring 16 January 2025.
- Non-parole period of three years, commencing 17 January 2019 and expiring 16 January 2022, being the earliest date of eligibility for parole.
- Victims support order under section 97 of the Victims Rights and Support Act 2013 directing payment of $500 to the victim of the sequence 11 offence.
Key Takeaways
- The totality principle requires that an aggregate sentence across multiple charges remain proportionate and not crushing, even when the cumulative total of individual indicative sentences is substantially higher.
- A 25% discount for early guilty pleas was applied across all charges, reflecting the utilitarian value to the criminal justice system rather than any other sentencing consideration.
- Special circumstances justifying a variation in the head sentence to non-parole period ratio can be established where first-time custody is combined with factors that make imprisonment more onerous, such as geographic isolation from family and language barriers limiting access to programs.
- Where an offender's conduct is found to be genuinely out of character and remorse is accepted as real, personal deterrence may carry reduced weight in the sentencing exercise.
- Under section 97 of the Victims Rights and Support Act 2013, a sentencing court may order a financial payment directly to a victim alongside a term of imprisonment.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5
- Victims Rights and Support Act 2013 (NSW), s 97
Cases:
- Mill v R (1988) 166 CLR 59
- R v De Simoni (1981) 147 CLR 383