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District Court 13 November 2020

R v Bayliss

[2020] NSWDC 769

Assault & violenceTheft & propertyFirearms & weapons
BUGMY FACTORS

Citation: R v Bayliss [2020] NSWDC 769
Court: District Court of New South Wales
Date: 13 November 2020
Judge: Bright DCJ

Background

The offender, a 34-year-old man, appeared for sentencing after being found guilty following a judge-alone trial of three offences arising from a violent home invasion in the early hours of 8 June 2014 at a residential unit in Booker Bay, NSW. He had been held in custody on bail refused since 31 January 2019.

Shortly before 2 am, the offender entered the unit wearing a balaclava and carrying both a pistol and a knife. The two male occupants of the unit were stabbed multiple times during a prolonged struggle. One victim suffered penetrating wounds to his abdomen that injured his liver, colon and stomach. The other suffered wounds to both shoulders and a leg. A female also present attempted to drag the offender out of the unit.

The offender was convicted of specially aggravated entry with intent to commit robbery while armed with a firearm (Count 2), and two counts of reckless wounding (Counts 3 and 4). He was acquitted of a separate count of specially aggravated break, enter and commit a serious indictable offence.

  • What is the appropriate objective seriousness of each offence, having regard to the manner of the offending and the nature of the weapons used?
  • What weight should be given to the offender's subjective circumstances, including drug addiction and background disadvantage (Bugmy factors)?
  • Whether special circumstances existed justifying a variation to the standard ratio between the non-parole period and the head sentence?
  • How should multiple offences be structured under an aggregate sentence, applying principles of accumulation, concurrency and totality?

Decision

On the objective seriousness of Count 2, Bright DCJ assessed the specially aggravated entry with intent offence as above the middle of the range. Key factors included the use of a firearm with ammunition present in the magazine, the offender arriving at night in disguise with two weapons, demonstrating clear planning, and the extended violence in the victims' home beyond what was captured in the wounding counts.

On the reckless wounding counts, the Court found Count 4 (Mr Johnson's wounds) objectively more serious than Count 3 because the abdominal wound penetrated and damaged multiple internal organs. Both counts were assessed by reference to the standard non-parole period of three years under the Crimes (Sentencing Procedure) Act 1999 (NSW).

On subjective matters, the Court took into account the offender's drug addiction and background disadvantage in accordance with the principles in Bugmy v R. Credit was also given for the offender's cooperation during the trial process: he agreed to a judge-alone trial (which assisted court administration during COVID-19 arrangements) and signed an Agreed Statement of Facts, reducing the number of witnesses required. The Court further acknowledged that custody conditions had been more burdensome since March 2020 due to COVID-19 restrictions in NSW correctional facilities, including the suspension of personal visits.

A finding of special circumstances was made under the Crimes (Sentencing Procedure) Act, warranting a longer parole period than the statutory default. The Court imposed an aggregate sentence under s 53A(1) of that Act, with indicative terms set for each count.

Orders Made

  • Count 2 (specially aggravated entry with intent, armed with a dangerous weapon): indicative total term of 5 years
  • Count 3 (reckless wounding, first victim): indicative total term of 3 years, non-parole period of 1 year and 10 months
  • Count 4 (reckless wounding, second victim): indicative total term of 3 years and 6 months, non-parole period of 2 years and 1 month
  • Aggregate sentence of 8 years and 4 months, commencing 14 August 2018 and expiring 13 December 2026
  • Non-parole period of 5 years, commencing 14 August 2018 and expiring 13 August 2023
  • First eligible for parole: 13 August 2023

Key Takeaways

  • The District Court assessed a violent, planned, night-time home invasion involving a firearm with ammunition in the magazine as above the middle of the range for specially aggravated entry with intent, even where the firearm was not proved to have been loaded at the chamber.
  • Where multiple victims sustain different levels of injury during the same incident, the sentencing court may assess the objective seriousness of each wounding count separately, distinguishing them on the basis of the nature and internal extent of the injuries.
  • Under Bugmy v R, evidence of drug addiction and background disadvantage remains a relevant mitigating factor in sentencing even for serious violent offending, though it does not diminish the importance of general and specific deterrence.
  • A finding of special circumstances permits the court to extend the parole period beyond the statutory default, and is available where the circumstances warrant a longer period of supervised reintegration.
  • Cooperation with the administration of justice during trial, including agreeing to a judge-alone trial during COVID-19 and signing an Agreed Statement of Facts that reduced witness requirements, constituted mitigating factors on sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 35(4), 111(3), 112(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5(1), 53A(1), 53A(2)(b), 54B(2)

Cases:
- Bugmy v R (2013) 249 CLR 571; [2013] HCA 37
- Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1