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District Court 18 November 2020

R v Darcy

[2020] NSWDC 824

Assault & violenceFraud & dishonestyTheft & propertyPublic order & justice offences

Citation: R v Darcy [2020] NSWDC 824
Court: District Court of New South Wales
Date: 18 November 2020
Judge(s): Bennett SC DCJ

Background

The offender appeared for sentence in the District Court at Sydney having pleaded guilty in the Local Court to a large number of criminal offences. The proceedings were spread across eight separate court files, reflecting that the charges had been prosecuted progressively over time. The sheer volume of material required two adjournments before the matter could be finalised.

The offending spanned a period concentrated largely in late 2018 and involved a pattern of property crime, including larceny, break and enter with intent to steal, obtaining property by deception, and related offences, committed across a number of Sydney suburbs including West Ryde, Haymarket, Chippendale, Burwood, Chatswood, Ashfield, Meadowbank, Gladesville, and Rozelle. A number of victims had wallets, handbags, backpacks, and personal documents stolen. The offender also faced charges of assault and resisting a police officer.

In total, 17 offences attracted a sentence, and a further series of offences were listed on Form 1 documents attached to many of those principal offences. Form 1 offences are matters that an offender acknowledges and asks the court to take into account when sentencing, without imposing a separate penalty for each. During the hearing, four offences that had been overlooked in the original materials were identified and addressed.

  • How to approach sentencing across 17 principal offences on eight separate court files, accounting for accumulation, concurrency, and the totality principle
  • Whether the offender was eligible for referral to the Drug Court program
  • What weight to give to the offender's drug addiction as a subjective mitigating factor
  • How to treat the numerous Form 1 offences in calculating the appropriate overall sentence
  • Whether special circumstances existed to justify a variation in the standard non-parole period ratio

Decision

Bennett SC DCJ worked through each of the 17 principal offences in turn, identifying the applicable maximum penalty under the Crimes Act 1900 and the Drug Misuse and Trafficking Act 1985 for each. The offences ranged widely in seriousness, from larceny attracting a maximum of five years' imprisonment, to break and enter offences carrying maximums of ten or fourteen years. Several charges were aggravated as second or subsequent offences, attracting the higher statutory maximum.

The judge took the Form 1 offences into account when fixing the sentence for their respective principal offences, in accordance with the Crimes (Sentencing Procedure) Act 1999. Those Form 1 matters included further break and enter offences, additional thefts, intentional property damage, resisting police, and possessing goods in custody.

The court gave consideration to the offender's drug addiction as a significant subjective factor bearing on the nature and pattern of the offending. That consideration, together with the eligibility criteria under the Drug Court Act 1998, led the court to refer the offender to the Drug Court program. The referral meant that the individual sentences noted in the judgment were structured with that prospective course in mind.

The sentencing table appended to the judgment set out individual terms for each principal offence. These ranged from approximately one year and three months to three years of imprisonment, with the court applying the totality principle to ensure that the overall sentence was proportionate rather than crushing given the offender's circumstances, including his age and addiction.

Orders Made

• 5 years imprisonment
• 7 years imprisonment with 3 years standard non-parole period
• 5 years imprisonment
• 5 years imprisonment
• 10 years imprisonment
• 10 years imprisonment
• 10 years imprisonment
• 5 years imprisonment
• 5 years imprisonment
• 10 years imprisonment
• 10 years imprisonment
• 10 years imprisonment
• 5 years imprisonment
• 5 years imprisonment
• 14 years imprisonment
• 5 years imprisonment
• 14 years imprisonment

Key Takeaways

  • The District Court applied the totality principle carefully across 17 principal offences on eight files, fixing individual sentences that, in aggregate, reflected the overall criminality without producing a disproportionate result.
  • Where an offender acknowledges Form 1 offences, those matters are taken into account in fixing the sentence for the principal offence to which they are attached, rather than attracting separate penalties.
  • A finding of eligibility under the Drug Court Act 1998 can result in referral to the Drug Court program even where an offender faces a large volume of serious property offences, provided the statutory criteria are met.
  • Drug addiction, while not excusing the conduct, was treated as a relevant subjective consideration that informed both the structure of the sentence and the decision to pursue a therapeutic sentencing pathway.
  • Second or subsequent offences under the Crimes Act 1900 attract higher statutory maximums, and the sentencing court must identify the applicable maximum correctly for each charge before determining the appropriate penalty.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 58, 61, 112, 114, 115, 117, 192E, 195, 527C
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Drug Court Act 1998 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW)

Cases:
- Attorney-General's application under s 37 Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518
- Imbornone v R [2017] NSWCCA 144
- R v Qutami [2001] NSWCCA 353