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District Court 25 November 2020

R v Brady

[2020] NSWDC 865

Theft & propertyDomestic & family violencePublic order & justice offences
CRIME AGGRAVATED BREAK AND ENTER MULTIPLE OFFENCES SNPP NOT ENFORCED REMORSE SHOWN

Citation: R v Brady [2020] NSWDC 865
Court: District Court of New South Wales
Date: 25 November 2020
Judge: Wilson SC DCJ

Background

The offender had been in an on-and-off relationship with the victim for approximately six years. An apprehended domestic violence order (ADVO) was already in place protecting the victim at the time of the offending, and the offender was also on conditional bail for an earlier AVO contravention.

On the evening of 10 January 2020, the offender attended the victim's Gosford home. After being asked to leave, he broke a laundry window, forced his way back inside, and confronted the victim and her mother while the victim's children were present. Police later found a jerry can and a strong petrol smell in the backyard, though the victim was uncertain whether this was connected to the offending. The victim was not physically injured.

The offender was arrested on 24 January 2020 and remained in custody from that date. He appeared for sentence on three charges: stalking and intimidating with intent to cause fear of physical harm (a domestic violence offence), aggravated break and enter and commit a serious indictable offence (knowing persons were present), and contravention of an AVO. Four further offences were placed on a Form 1 to be taken into account in sentencing.

  • What sentence was appropriate for the principal offence of aggravated break and enter under s 112(2) of the Crimes Act 1900 (NSW), given the standard non-parole period (SNPP) of five years?
  • Whether special circumstances existed to justify a non-parole period shorter than the statutory default (one-third of the head sentence)?
  • Whether an Intensive Corrections Order (ICO) was available under s 4B of the Crimes (Sentencing Procedure) Act 1999 (NSW) in the context of a domestic violence offence?
  • What weight should be given to the offender's mental health, remorse, and history of alcohol-related domestic violence?
  • Whether a final ADVO should be made upon sentence?

Decision

Wilson SC DCJ characterised the aggravated break and enter as falling below the mid-range of objective seriousness for that offence type, given the maximum penalty of 20 years and the nature of what occurred. The offender's prior history of similar domestic violence offending disentitled him to any leniency based on good character and, in the judge's view, aggravated the offending. The fact that the offender was on bail at the time was also a statutory aggravating factor under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999.

The judge gave weight to the offender's mental health issues and genuine remorse, and found that special circumstances existed. This justified departing downward from the default non-parole period, producing a non-parole period of 18 months against a head sentence of three years. The SNPP of five years was not enforced, reflecting the below-mid-range objective seriousness and the relevant subjective factors.

An ICO was considered but rejected. The judge held that, absent evidence as to the victim's safety, s 4B of the Crimes (Sentencing Procedure) Act 1999 prevented such an order from being made in a matter of this nature.

A final ADVO was made on the Crown's application and without opposition from the offender, to operate for two years from the date of sentence.

Orders Made

  • The offender was convicted of three offences: stalking and intimidating with intent to cause fear (s 13(1), Crimes (Domestic and Personal Violence) Act 2007); aggravated break and enter and commit a serious indictable offence (s 112(2), Crimes Act 1900); and contravention of an AVO prohibition or restriction (s 14(1), Crimes (Domestic and Personal Violence) Act 2007).
  • A total sentence of three years' full-time imprisonment was imposed, commencing 24 January 2020 and expiring 23 January 2023.
  • A non-parole period of 18 months was set, commencing 24 January 2020 and expiring 23 July 2021, with the offender eligible for release on parole at that date.
  • An Intensive Corrections Order was refused under s 4B of the Crimes (Sentencing Procedure) Act 1999.
  • A final ADVO was made for two years from 25 November 2020 to 24 November 2022, with conditions 1, 2, and 8 attached.

Key Takeaways

  • Under s 4B of the Crimes (Sentencing Procedure) Act 1999, a court sentencing for a domestic violence offence cannot make an Intensive Corrections Order without evidence addressing the safety of the victim; the District Court held that no such evidence was available here.
  • The standard non-parole period for aggravated break and enter under s 112(2) of the Crimes Act 1900 is five years, but it is not a mandatory minimum; it was not enforced where the offending was assessed as below mid-range and relevant subjective factors applied.
  • A finding of special circumstances permits a court to reduce the non-parole period below the default ratio, particularly where rehabilitation is a sentencing consideration.
  • Prior domestic violence offending can both disentitle an offender to a good character discount and independently aggravate the index offending in the court's assessment.
  • Offending while on conditional bail constitutes a statutory aggravating factor under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999, regardless of the subjective circumstances.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(2)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 13(1), 14(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 4B, 5, 21A(2)

Cases cited: No cases were cited in the judgment.