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District Court 15 December 2020

R v Broadhurst

[2020] NSWDC 853

Assault & violenceTheft & propertyDomestic & family violencePublic order & justice offences

Citation: R v Broadhurst [2020] NSWDC 853
Court: District Court of New South Wales
Date: 15 December 2020
Judge: Bennett SC DCJ

Background

The offender faced three charges arising from events on 20 and 21 May 2019 at St Marys, NSW. The charges concerned conduct directed at a former domestic partner: an aggravated robbery involving corporal violence (the theft of her mobile phone), an aggravated break and enter of her dwelling with intimidation committed inside, and a separate act of intimidation the following day. The offences occurred in the context of a relationship breakdown involving two children.

The offender pleaded guilty to the intimidation count at the commencement of trial. The jury returned guilty verdicts on the aggravated robbery and aggravated break and enter counts on 7 October 2020. Sentencing then proceeded on all three offences.

The offender had been in custody since arrest on 22 May 2019. During that period he had also served sentences for separate offences, including two counts of contravening apprehended violence orders (one involving 521 text messages to the victim, another involving 21 recorded phone calls made from custody) and two escapes from custody.

  • What aggregate sentence was appropriate across three offences involving different maximum penalties and different sentencing regimes?
  • How should the standard non-parole period for the aggravated break and enter offence interact with the sentencing exercise?
  • How should pre-sentence custody (which included time served for other offences) be treated when fixing the commencement date for the aggregate sentence?
  • Whether special circumstances existed justifying a longer parole period (and corresponding reduction in the non-parole period relative to the head sentence).
  • What weight should be given to the totality principle across all of the offender's related criminal conduct?

Decision

Bennett SC DCJ convicted the offender on all three counts and imposed an aggregate sentence. For the aggravated break and enter, which carries a standard non-parole period of five years under the Crimes (Sentencing Procedure) Act 1999, the court was required to identify relevant factors in setting a non-parole period departing from that standard. The court undertook that exercise in accordance with the High Court's guidance in Muldrock v The Queen (2011) and the Court of Criminal Appeal's discussion in Tepania v The Queen [2018].

The court determined that the aggregate sentence should commence on 1 January 2020 rather than the date of arrest. This reflected two considerations: the conduct giving rise to all of the charges, including the AVO breaches, formed a continuum arising from the same relationship breakdown; and fixing that commencement date ensured that the offender's total punishment across all related matters was not disproportionate, in line with the totality principle.

The court found special circumstances existed, within the meaning of the Crimes (Sentencing Procedure) Act 1999, warranting a non-parole period that represents a greater proportion of parole supervision relative to the head sentence than would ordinarily apply. A psychologist's opinion supported the view that, with adequate management, the offender could in time address impulse control issues. The court structured the sentence to allow a longer supervisory period on parole to promote rehabilitation, while maintaining a non-parole period reflecting the seriousness of the offending.

A further contravention of an AVO (attending the victim's home at the time of the primary offences) was dealt with under s 166 of the Criminal Procedure Act 1986 and resulted in a conviction with no additional penalty imposed under s 10A of the Crimes (Sentencing Procedure) Act 1999.

Orders Made

  • Aggravated robbery involving corporal violence: sentenced to 3 years and 3 months imprisonment.
  • Aggravated break and enter (standard non-parole period offence): sentenced to 3 years and 3 months imprisonment with a non-parole period of 1 year and 9 months.
  • Intimidation (domestic violence): sentenced to 1 year imprisonment.
  • Aggregate sentence commencing 1 January 2020: non-parole period of 1 year and 9 months, expiring 30 September 2021; head sentence of 4 years and 3 months, expiring 31 March 2024.
  • Contravening AVO (sequence 9, H73827581): convicted, no additional penalty (s 10A).
  • Two further charges (intimidation and use of carriage services): withdrawn and dismissed.

Key Takeaways

  • The District Court applied the totality principle by backdating the commencement of the aggregate sentence to reflect the offender's related prior custodial time, ensuring the combined punishment remained proportionate across a continuum of connected offending.
  • Where a standard non-parole period applies (here, five years for aggravated break and enter under s 112(2) of the Crimes Act 1900), the sentencing court must record reasons for any departure by identifying specific factors considered, following Muldrock v The Queen and Tepania v The Queen.
  • A finding of special circumstances permits a court to set a non-parole period that represents a lower proportion of the head sentence than the statutory default, where an extended period of supervised parole is warranted to address the offender's rehabilitation needs.
  • The aggregate sentencing regime allows individual sentences with significant concurrence to be structured so that the overall term reflects culpability across multiple offences without producing a crushing outcome.
  • Conduct forming a continuum from the same factual background, including separate AVO breaches arising from the same relationship, can inform both the commencement date of a sentence and the application of the totality principle.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 95(1), 112(2)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 21A, Part 4 Div 1A (standard non-parole periods), s 54B
- Criminal Procedure Act 1986 (NSW), s 166
- Evidence Act 1995 (NSW)

Cases
- Muldrock v The Queen (2011) HCA 39
- Tepania v The Queen [2018] NSWCCA 247
- Callaghan v R (2006) NSWCCA 258
- Markarian v The Queen [2005] HCA 25
- Imbornone v R [2017] NSWCCA 144
- Qutami v R [2001] NSWCCA 353