Citation: R v Brown; R v Dungay [2020] NSWDC 921
Court: District Court of New South Wales
Date: 25 November 2020
Judge(s): King SC DCJ
Background
Two offenders, Greg Brown and Wayne Dungay, appeared for sentence in connection with a coordinated armed break-in at the Macksville Ex-Services Club in the early hours of 6 October 2019. They were part of a four-person joint criminal enterprise that also included Chris Dungay and Timothy White. The group was armed with a longarm firearm, two machetes, and a long-handled hammer when they broke into the club. A cleaner was present inside but neither party was aware of the other.
The offenders searched the club's office and bar area but obtained only an empty tin. Having been frustrated in that attempt, they then drove to the Nambucca Heads area and discussed robbing the Nambucca Sports and Recreation Club. They attended near that premises but found it closed and abandoned the plan.
Both offenders were committed for sentence from Kempsey Local Court in September 2020 after entering guilty pleas, which entitled each to a 25 percent discount on the sentence that would otherwise have been imposed.
Legal Issues
- The appropriate sentence for the principal offence of specially aggravated break, enter and steal armed with a dangerous weapon under s 112(3) of the Crimes Act 1900, which carries a maximum of 25 years' imprisonment and a standard non-parole period of seven years
- Whether and how the Form 1 offence of conspiracy to commit robbery armed with a dangerous weapon should be taken into account when sentencing each offender
- How to assess the objective seriousness of the conduct, including the circumstances of aggravation (armed entry, disguises, multiple weapons, presence of a cleaner)
- How to weigh subjective matters for each offender, including criminal history, intellectual functioning, prospects of rehabilitation, remorse, and the relevance of the principles in R v Fernando and Bugmy v The Queen for offenders with backgrounds of disadvantage
Decision
The court treated the offending as serious in objective terms. The group had planned the break-in carefully, taking deliberate steps to avoid detection including varying their routes, changing clothing, and wearing disguises. The club was entered by force, the group was armed with multiple weapons, and loaded firearms were present. Although the cleaner inside was unaware of the offenders and was not harmed, his presence represented a significant aggravating feature.
For Greg Brown, the court acknowledged his role within the enterprise and weighed his guilty plea, background, and any relevant Fernando-type considerations alongside the gravity of the offence. The Form 1 matter of conspiracy to commit armed robbery was taken into account, reflecting the group's active planning of a further armed attack after leaving the Macksville club.
For Wayne Dungay, the court similarly took the Form 1 conspiracy into account. The court noted that Dungay had a history of prior offending, had breached parole conditions including resuming prohibited drug use, and was on parole at the time of the offence. The court described his prospects for rehabilitation and reoffending as "guarded at best." Regarding remorse and contrition, the court observed there was little direct evidence of either, though Dungay's low level of intellectual functioning was acknowledged as potentially affecting his capacity to appreciate those matters. The guilty plea was treated as some indication of remorse.
Each offender received the 25 percent discount reflecting their early guilty pleas. The court applied the established sentencing framework, balancing the standard non-parole period as a guide against the individual circumstances of each offender.
Orders Made
• Reports of Mr Borkowski and other documents to be photocopied and provided to Corrective Services with the offender
• Offender to be housed in a minimum security setting
Key Takeaways
- The District Court treated a heavily pre-planned, multi-weapon armed break-in as seriously aggravated, with the unsuspected presence of a cleaner inside the premises compounding the objective gravity even though no confrontation occurred.
- Under s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999, a 25 percent sentencing discount applied because both offenders were committed for sentence following guilty pleas entered in the Local Court.
- A Form 1 offence of conspiracy to commit robbery armed with a dangerous weapon was taken into account for each offender in respect of the planned, but abandoned, attack on the Nambucca Sports and Recreation Club.
- Where an offender has a low level of intellectual functioning, a sentencing court may infer limited capacity to appreciate concepts such as remorse and contrition, though a guilty plea can still be treated as some evidence of those matters.
- The principles in Bugmy v The Queen and R v Fernando remained relevant to the assessment of subjective circumstances, particularly for offenders from backgrounds of deprivation and disadvantage.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 97(2), 112(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25D(2)(a), 32
Cases
- Bugmy v The Queen (2013) 249 CLR 571
- R v Fernando (1992) 76 A Crim R 58
- R v Millwood [2012] NSWCCA 2