Citation: R v Sutton-Howsan [2020] NSWDC 844
Court: District Court of New South Wales
Date: 28 August 2020
Judge: M L Williams SC DCJ
Background
The offender, a 25-year-old man with an extensive juvenile and adult criminal history, pleaded guilty to a series of offences arising from a chaotic early-morning incident in Jindabyne in August 2019. Heavily intoxicated on MDMA, he entered a residential property at approximately 3am, produced a hunting knife toward the occupants, and remained at the premises for about an hour. He had originally intended to travel by bus from Canberra to Sydney but ended up in Jindabyne in sub-zero temperatures.
When police arrived around 7:20am, the offender fled across a paddock, failed to comply with directions, and used the knife to resist lawful detention. He was eventually apprehended while still holding the knife and a cash tin, and continued to resist arrest physically. Additional conduct included entering enclosed lands and possessing a doona stolen from a nearby motel.
The offender had spent approximately nine of the preceding ten years in juvenile or adult custody. He had recently been sentenced for a separate aggravated break, enter and steal in company, which affected the commencement date and structure of the sentence imposed in this matter.
Legal Issues
- What aggregate sentence and non-parole period was appropriate for the principal and related offences, having regard to the objective seriousness of each charge?
- How should the Form 1 matters (two counts of intimidation and one of receiving stolen property) be taken into account in accordance with the guideline judgment?
- What weight should be given to the aggravating factors (use of a weapon, prior criminal record) and mitigating factors (guilty plea, absence of planning, intoxication)?
- Was a finding of special circumstances warranted to extend the period of parole supervision?
- How should the sentence interact with the terms already being served for separate offences, applying principles of totality and accumulation?
Decision
The court found that the principal offence, aggravated break and enter with commission of a serious indictable offence (carrying a maximum of 20 years and a standard non-parole period of five years), was a serious matter involving the brandishing of a hunting knife at victims inside their home in the early hours of the morning. However, the court accepted the offender's submission that it fell below the mid-range of objective seriousness. The remaining offences were similarly assessed toward the lower end of the range.
The court applied a 25 per cent discount to reflect the utilitarian value of the guilty pleas. Recognised aggravating factors included the use of a knife and the offender's significant prior criminal record. The court accepted, as mitigating factors, the absence of any planning or organised criminal activity and the pleas of guilty. Intoxication was noted as context for the offending.
On the question of deterrence and rehabilitation, the court observed that the offender's criminal history required greater emphasis on general and specific deterrence, denunciation, and community protection. His prospects of rehabilitation were described as "guarded at best," notwithstanding some expressed insight and remorse, and a partially completed residential rehabilitation program. The court expressed cautious optimism that the offender, now in his mid-twenties, might develop greater maturity.
Special circumstances were found, given the offender's clear need for an extended period of post-release supervision. The Form 1 matters were taken into account in sentencing on Sequence 1 in accordance with the approach outlined in the relevant guideline judgment. The aggregate sentence was backdated to 23 December 2019, reflecting accepted submissions about the appropriate commencement date in light of the sentences already being served.
Orders Made
- Conviction recorded for each offence.
- Indicative sentences:
- Sequence 1 (aggravated break and enter, with Form 1 matters: sequences 9, 10 and 11): 2 years and 1 month, non-parole period of 16 months.
- Sequence 2 (use of offensive weapon to prevent lawful arrest): 18 months.
- Sequence 6 (resist officer): 13 months.
- Sequence 8 (intimidation): 9 months.
- Aggregate sentence of 2 years and 9 months, commencing 23 December 2019.
- Non-parole period of 22 months, expiring 22 October 2021.
- Special circumstances found, based on the need for extended supervision.
- Sequence 4 dealt with pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (no conviction recorded).
- Sequence 3 withdrawn.
Key Takeaways
- The District Court applied the guideline in Attorney General's Application No 1 of 2002 when incorporating Form 1 offences into the sentence for the principal charge, increasing the sentence for Sequence 1 beyond what it would otherwise have been.
- A 25 per cent discount for the utilitarian value of guilty pleas was applied across all charges, reflecting the offender's early resolution of the proceedings.
- Where an offender is already serving separate sentences at the time of sentencing, the court may exercise its discretion to fix a commencement date that accounts for both totality and the need for appropriate accumulation.
- Under s 10A of the Crimes (Sentencing Procedure) Act 1999, a court may record a conviction without imposing any further penalty, which was applied to one of the lesser ancillary offences.
- A finding of special circumstances, which extends the parole period relative to the non-parole period, was justified by the offender's entrenched drug dependency, limited rehabilitation history, and the consequent need for structured supervision upon release.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 33B(1)(a), 58, 112(2)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 37
Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 (guideline judgment on Form 1 offences)