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District Court 13 May 2020

R v Brown

[2020] NSWDC 925

Assault & violencePublic order & justice offences

Citation: R v Brown [2020] NSWDC 925
Court: District Court of New South Wales
Date: 13 May 2020
Judge(s): Bennett SC DCJ

Background

In the early hours of 5 March 2019, a group of people attended a residential unit in Moree at approximately 4:30am. The group forced entry and a serious stabbing occurred inside, leaving one victim with a penetrating chest wound that required nine days of hospitalisation at John Hunter Hospital after he was airlifted from Moree.

The offender, Pamela Brown, was not among those who entered the premises. Her role was limited to remaining outside the flat and yelling encouragement and support to those inside. She had knowledge the group attended to obtain prohibited drugs, and her memory of events was affected by alcohol consumption that night.

Ms Brown was charged with remaining on land occupied in connection with a building with intent to commit an indictable offence, namely intimidating three named persons, contrary to s 114(1)(d) of the Crimes Act 1900. She pleaded guilty at the commencement of the relevant sittings, which were conducted remotely due to COVID-19 restrictions.

  • What sentence was appropriate for an offender whose role was limited to providing encouragement from outside the premises during a serious home invasion?
  • What guilty plea discount applied under the Early Appropriate Guilty Plea (EAGP) arrangements in the Crimes (Sentencing Procedure) Act 1999?
  • Whether a community corrections order was the appropriate sentencing option rather than imprisonment.
  • What conditions should attach to the community corrections order.
  • How to deal with a pre-existing community corrections order for a driving offence that had been breached.

Decision

Bennett SC DCJ was careful to distinguish Ms Brown's role from that of her co-offenders. Her culpability was assessed only on the basis of remaining outside the premises and offering vocal encouragement, not on the more serious conduct of those who entered the building. The co-offender Daryl Smith, who carried out the stabbing, had already received six years' imprisonment with a non-parole period of four and a half years.

The plea of guilty was entered relatively late, attracting a discount of 5% under s 25D(2)(c) of the Crimes (Sentencing Procedure) Act 1999 pursuant to the EAGP framework, rather than the 10% submitted by defence counsel. His Honour noted that the discount was effectively otiose at the time of sentencing because no sentence of imprisonment was being imposed, but flagged it would be relevant if the community corrections order were later breached and imprisonment became necessary.

His Honour took into account the offender's personal circumstances, including matters raised in a pre-sentence report, and determined that a community corrections order was the appropriate disposition. The sentence was structured to include supervision by Community Corrections and a condition requiring abstention from prohibited drugs.

A pre-existing community corrections order for a driving whilst disqualified offence was also addressed. That order had been breached and was revoked, with a fresh community corrections order of 18 months substituted in its place.

Orders Made

  • Ms Brown convicted of remaining on land with intent to commit an indictable offence contrary to s 114(1)(d) of the Crimes Act 1900.
  • Community corrections order imposed for 2.5 years from the date of sentence, subject to standard conditions (no offending; attend court if called upon).
  • Additional conditions imposed: abstention from prohibited drugs (s 89(2)(d) Crimes (Sentencing Procedure) Act 1999) and supervision by Community Corrections Service (s 89(2)(g)).
  • Pre-existing community corrections order (for driving whilst disqualified) revoked.
  • Fresh community corrections order of 18 months substituted for the revoked order, with the same standard and additional conditions; no further disqualification period imposed.
  • Indictment amended pursuant to s 21 of the Criminal Procedure Act 1986 to specify one victim (DR) in place of the three originally named.

Key Takeaways

  • A person who remains outside premises and provides vocal encouragement to those committing an indictable offence inside can be convicted under s 114(1)(d) of the Crimes Act 1900, even without entering the building.
  • Under the EAGP framework in the Crimes (Sentencing Procedure) Act 1999, the timing and sequence of negotiations preceding a guilty plea determines the applicable discount, and a late-entered plea attracted only a 5% reduction rather than the 10% sought by the defence.
  • Where a community corrections order is imposed rather than imprisonment, any plea discount applicable to a potential custodial sentence is preserved and becomes relevant only if the order is later breached and imprisonment is subsequently imposed.
  • The District Court assessed the offender's moral culpability solely by reference to her own conduct, explicitly declining to hold her responsible for the more serious actions of co-offenders during the same incident.
  • Sentencing courts retain discretion to impose additional conditions on community corrections orders, including drug abstention and supervision requirements, where the offender's circumstances warrant them.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 114(1)(d)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25D, 87, 89
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Crimes (Sentencing Procedure Amendment) (Sentencing Options) Act 2017 (NSW)
- Criminal Procedure Act 1986 (NSW), s 21

Cases:
- R v Qutami [2001] NSWCCA 353