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District Court 11 December 2020

R v Dunn

[2020] NSWDC 877

Assault & violenceDrugs
CRIME SUPPLY PROHIBITED DRUG LONG CUSTODIAL HISTORY DEPRIVED BACKGROUND INSTITUTIONALISED INABILITY TO ENGAGE WITH REHABILITATION

Citation: R v Dunn [2020] NSWDC 877
Court: District Court of New South Wales
Date: 11 December 2020 (amended order 14 July 2021)
Judge: Haesler SC DCJ

Background

The offender, a man born in 1989 with an extensive criminal history dating from 2008, appeared for sentencing on three serious offences committed in April 2019. The offences were two counts of supplying methylamphetamine (6.5 grams and 56 grams respectively) and one count of affray. All offences were committed while the offender was on parole for a prior similar offence.

The offender's background was significantly deprived. He never knew his father, his mother's life was affected by drug and alcohol abuse, and he experienced emotional neglect, abandonment, and bullying in childhood. The court accepted that this history left him with feelings of hopelessness and a diminished sense of self-worth, and that it reduced his moral culpability compared with a person raised without such disadvantage.

The affray arose from a dispute following the breakdown of a brief relationship. Text messages were exchanged, and a planned street fight occurred in West Wollongong in which the other party attended armed with a samurai sword. The offender suffered serious injuries as a result. After sentence was entered, the offender sought correction of the commencement dates of his sentences, which the court had miscalculated by an arithmetic error.

  • What weight should be given to a deprived and traumatic childhood and resulting institutionalisation when assessing moral culpability?
  • How should the court approach sentencing where the offender is unable or unlikely to engage with rehabilitation programs?
  • What discount applies for a guilty plea where charge negotiations affected the offences ultimately presented on the indictment?
  • How should extra-curial punishment (serious injury suffered during the affray) be factored into the sentence?
  • How should the principle of totality govern the accumulation of sentences, particularly where parole breach and a separate bond breach are also in play?
  • Whether s 43 of the Crimes (Sentencing Procedure) Act 1999 permitted correction of an arithmetic error in the commencement dates of the sentences, or whether the court's slip rule (inherent jurisdiction) applied instead.

Decision

Haesler SC DCJ imposed an aggregate sentence of three years' imprisonment with a non-parole period of two years. The court accepted that the offender's childhood trauma and consequent institutionalisation reduced his moral culpability, but also acknowledged that general deterrence remained a significant sentencing consideration given the parliamentary policy expressed through maximum penalties for drug supply.

On rehabilitation, the court observed that the offender had never meaningfully engaged with any programs recommended to him, and had continued to use and supply drugs while in custody. The court was guarded about his future prospects but still recommended that opportunities for rehabilitation programs be made available both in custody and on release. The court noted that upon release the offender would have no stable housing or support network, heightening the risk of reoffending.

A 25% discount for an early plea of guilty was applied to the smaller supply offence and the affray. The discount for the larger supply offence was considered in light of the charge negotiations, with the court accepting the explanation provided by the Crown prosecutor as to how the final indictment was shaped.

The serious injuries the offender suffered during the affray were treated as extra-curial punishment, warranting a reduction from what would otherwise have been a significantly heavier sentence for that offence. Regarding the commencement date error, the court found that s 43 of the Crimes (Sentencing Procedure) Act 1999 did not apply because the arithmetic mistake did not amount to the imposition of a sentence "contrary to law." However, the court held that the slip rule (as an aspect of the court's inherent or implied powers, as confirmed in R v Achurch (No 2) and Burrell v The Queen) permitted correction of the error by consent, without reopening or reconsidering the substance of the original decision.

Orders Made

  • Breach of Community Corrections Order (imposed 19 February 2019): proven; sentenced to 2 months' imprisonment (subsequently corrected to commence 28 October 2019 and expire 27 December 2019).
  • Supply of 6.05 grams of methylamphetamine (Sequence 1, including Form 1 matter): 1 year 1 month imprisonment.
  • Supply of 56 grams of methylamphetamine: 2 years 3 months' imprisonment.
  • Affray: 1 year 2 months' imprisonment.
  • Aggregate sentence: 3 years' imprisonment.
  • Non-parole period: 2 years, commencing 28 December 2019 (as corrected) and expiring 27 December 2021; balance of 1 year expiring 27 December 2022.
  • Drug destruction order made (if required).
  • Possession of prohibited drug (Sequence 4): convicted; no further penalty imposed pursuant to s 10A Crimes (Sentencing Procedure) Act 1999.
  • Slip rule applied by consent on 14 July 2021: commencement dates amended to correct an arithmetic error in the original orders.

Key Takeaways

  • A severely deprived childhood, including emotional neglect and the resulting institutionalisation, can reduce an offender's moral culpability at sentencing, even where that offender is an adult with an extensive criminal record.
  • Serious physical injury sustained by an offender in the course of committing an affray may constitute extra-curial punishment, justifying a reduction in the sentence that would otherwise have been imposed for that offence.
  • Where charge negotiations affect the form of the indictment and the agreed facts, this may properly affect the utilitarian discount for a guilty plea; the court must examine the context of the negotiations before determining the appropriate reduction.
  • Section 43 of the Crimes (Sentencing Procedure) Act 1999 is limited to correcting errors that have resulted in the imposition of a sentence "contrary to law" and does not extend to a general reopening of proceedings; an arithmetic error in calculating a commencement date does not necessarily meet that threshold.
  • Where s 43 is unavailable, the court's slip rule (as an aspect of inherent or implied jurisdiction, confirmed in Burrell v The Queen and R v Achurch (No 2)) may permit correction of a simple arithmetic error by consent, without reopening or reconsidering the substance of the original sentencing decision.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 93C(1) (affray)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 43
- Drug (Misuse and Trafficking) Act 1985 (NSW), s 25(1) (supply of prohibited drug)

Cases
- Bungie, Scott v R; Bungie, Robert v R [2015] NSWCCA 9
- Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218
- Dean v R [2020] NSWCCA 317
- Gould v Vaggelas (1985) 157 CLR 215; [1985] HCA 75
- R v Achurch (No 2) [2013] NSWCCA 117; 84 NSWLR 328
- Thompson-Davis v R [2013] NSWCCA 75