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District Court 29 October 2020

R v Watson

[2020] NSWDC 952

Assault & violenceTheft & propertyTraffic & drivingDomestic & family violence

Citation: R v Watson [2020] NSWDC 952
Court: District Court of New South Wales
Date: 29 October 2020
Judge: Tupman DCJ

Background

The appellant/offender appeared before the District Court on two separate bases. First, he appealed against an aggregate sentence imposed by the Local Court at Nowra on 18 August 2020, covering 10 offences across three distinct periods of offending. Second, he was committed to the District Court for sentence on three further offences to which he had already pleaded guilty.

The offending was varied and serious. The stealing and break-and-enter offences, committed in the Milton area in September 2019, appeared to be motivated by a need to obtain food, clothing and drugs. The offences of violence, including two counts of assault occasioning actual bodily harm and one count of intentional choking without consent, were committed against the offender's long-term partner at Burrill Lake over two days in late September 2019. The driving offence involved a disqualified driver who had never held a licence, fleeing police at high speed and crashing in April 2019.

The offender, aged 32 at the time of sentencing, had a lengthy criminal record, a history of serious drug use dating from childhood, and an unstable and abusive upbringing. His traffic record alone dated back to December 2008 and included multiple prior convictions for driving whilst disqualified, for which he had received custodial sentences on numerous occasions. He had been declared a habitual traffic offender twice and was disqualified from driving until 2036.

  • Whether the indicative sentences imposed by the Local Court for the 10 appeal offences were appropriate, and if not, what sentences should be substituted.
  • What sentences were appropriate for the three fresh offences (two counts of assault occasioning ABH and one count of intentional choking without consent) committed against the offender's partner.
  • How the aggregate sentences for the appeal matters and the fresh sentence matters should be structured and sequenced, having regard to the principle of totality.

Decision

The sentence appeal

Tupman DCJ upheld the appeal in part. For the drive disqualified matter (file H320654294), the Magistrate's indicative sentence of 11 months was reduced to 9 months, on the basis that the original figure did not adequately reflect the utilitarian value of the guilty plea. However, the court emphasised that this remained a very serious instance of the offence: the offender had fled police at dangerous speed, crashed the vehicle, and had an extensive disqualification history, having apparently never held a licence in New South Wales. The indicative sentences for the remaining appeal offences (file H72912748) were confirmed, and one further indicative sentence was reduced from 11 months to 6 months. The aggregate sentence for all appeal matters was reduced from 4 years (with a 2-year non-parole period) to 3 years, with a non-parole period of 18 months, commencing 27 September 2019.

The fresh sentence matters

For the two assault occasioning ABH offences and the choking offence, the court considered the victim impact statement, the domestic relationship context, and the offender's background including his childhood drug use and physical abuse. The court indicated an overall sentence of 2 years and 3 months for the two assault charges and 18 months for the choking charge. An aggregate sentence of 4 years was imposed under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), with a non-parole period of 2 years, commencing 27 September 2020.

Totality

The court declined to simply accumulate the two aggregate sentences, which would have produced a total of 7 years with a 3 year and 6 month non-parole period. Tupman DCJ considered that outcome excessive having regard to totality. The overall structure was designed to produce a combined non-parole period of 3 years running from 27 September 2019, expiring 26 September 2022, followed by 2 years of parole. The court noted that the prospects of rehabilitation were guarded.

Orders Made

  • Sentence appeal upheld.
  • Indicative sentences for file H72912748 confirmed.
  • Indicative sentence for file H320654294 (drive disqualified) quashed and substituted with 9 months.
  • One further indicative sentence (file H74028655-1) quashed and substituted with 6 months.
  • Aggregate sentence for appeal matters quashed and replaced with an aggregate of 3 years commencing 27 September 2019, expiring 26 September 2022, with a non-parole period of 18 months (expiring 26 March 2021) and parole of 18 months thereafter.
  • For the fresh sentence matters, an aggregate sentence of 4 years imposed under s 53A, commencing 27 September 2020, expiring 26 September 2024, with a non-parole period of 2 years (expiring 26 September 2022) and parole of 2 years thereafter.
  • Overall combined non-parole period of 3 years from 27 September 2019 to 26 September 2022, with 2 years parole thereafter.

Key Takeaways

  • When assessing a sentence appeal, the District Court will scrutinise whether the Local Court's indicative sentence properly reflects the utilitarian value of a guilty plea, even where the underlying offending is serious.
  • A prior history of repeated disqualified driving, combined with dangerous driving behaviour during the offence itself, can operate as an aggravating feature when sentencing for a further drive disqualified offence, even though the maximum penalty is fixed at 12 months.
  • Under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), aggregate sentencing allows a court to impose a single sentence across multiple offences, and the District Court applied this mechanism to both the appeal matters and the fresh sentence matters separately.
  • The totality principle operated to limit the overall non-parole period: full accumulation of the two separate aggregate sentences was rejected as producing an outcome that was disproportionate to the total criminality.
  • Where an offender faces both a sentence appeal and fresh sentencing in the same proceedings, the sequencing and commencement dates of the resulting sentences are interrelated, and the outcome of the appeal directly affects the structure of the fresh sentences.

Legislation and Cases Referenced

Legislation

  • Crimes Act 1900 (NSW), s 59(1) (assault occasioning actual bodily harm)
  • Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A (aggregate sentencing)

Cases

No cases were cited in the judgment.