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Local Court 19 February 2020

Police v Kieron Davison

[2020] NSWLC 6

DrugsPublic order & justice offences
BREACH OF E XTENDED SUPERVISION ORDER DEPRIVED UPBRINGING DRUG ADDICTION FROM EARLY AGE ONGOING NEED FOR REHABILITATION

Citation: Police v Kieron Davison [2020] NSWLC 6
Court: Local Court of NSW
Date: 19 February 2020
Judge: P D Stewart LCM

Background

The offender was subject to an Extended Supervision Order (ESO) made by the Supreme Court of NSW on 18 June 2019 for a period of two years. The ESO was itself preceded by an Interim Supervision Order (ISO) made in December 2018. Both orders contained conditions designed to protect the community, including prohibitions on possessing or using illegal drugs and a requirement to submit to drug testing.

On 21 January 2020, the offender underwent a drug test administered by a Community Corrections Officer. Analysis returned a positive result for methyl-amphetamine, as well as 6-acetyl morphine and amphetamine. He was arrested on 24 January 2020 and remained in custody from that date.

The offender pleaded guilty to failing to comply with the ESO under section 12 of the Crimes (High Risk Offenders) Act 2006. This was his seventh breach across the ISO and ESO within a period of approximately 12 months, with all prior breaches also involving positive drug tests.

  • Whether the offender's prior criminal record, including six prior breaches of supervision orders, operated as an aggravating factor under the Crimes (Sentencing Procedure) Act 1999
  • Whether the fact of being on conditional liberty at the time of the offence was an aggravating factor, where the breach of that conditional liberty constituted the offence itself
  • Whether the section 5 threshold for imprisonment had been crossed
  • What weight should be given to subjective factors, including impending fatherhood, deprived upbringing, long-term drug addiction, and rehabilitation prospects, when balanced against objective seriousness and community protection
  • Whether an Intensive Correction Order (ICO) was appropriate, or whether a full-time custodial sentence was required
  • Whether special circumstances existed to justify a reduction in the non-parole period

Decision

The magistrate accepted the agreed facts as tendered by consent and allowed a 25% discount on sentence for the utilitarian value of the early guilty plea, consistent with R v Thomson; R v Houlton and R v Borkowski. The maximum penalty for the offence is five years imprisonment, though the Local Court's jurisdictional limit is two years. The magistrate applied the principle from R v Doan that the jurisdictional limit is not reserved for worst-case scenarios.

On the question of aggravating factors, the magistrate found that the prior criminal record, while significant, did not operate as a formal aggravating factor under section 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999. Separately, being on conditional liberty was not an aggravating factor under section 21A(2)(j) where the breach of that conditional liberty was the very offence being sentenced. However, the record afforded the offender little leniency, given the serious personal violence matters it contained and the six prior breaches within twelve months.

The magistrate drew on Lynn v State of New South Wales for the proposition that a breach of an ESO condition is a very serious offence, and on State of New South Wales v BG (Final) to confirm that ESO conditions are crafted to address specific risks posed by the individual offender. The magistrate accepted that the section 5 threshold for imprisonment was crossed. An ICO was considered but rejected, with the court finding that the offender's prospects of rehabilitation were poor, as demonstrated by his persistent non-compliance and continued drug use even in the context of impending fatherhood. The subjective matters, including the imminent birth of his child, deprived upbringing, and addiction history, were acknowledged but did not displace the need for adequate punishment and community protection.

Special circumstances were found to exist by reason of the offender's drug addiction and the considerations arising from his deprived background under Bugmy v The Queen. The non-parole period was accordingly reduced below the statutory one-third benchmark to promote rehabilitation. The magistrate noted the operation of section 160A of the Crimes (Administration of Sentences) Act 1999, which provides that parole will be suspended while the offender remains subject to the ESO.

Orders Made

  • The offender was sentenced to a non-parole period of 6 months, commencing 24 January 2020 and expiring 23 July 2020
  • An additional term on parole of 6 months was imposed
  • The total sentence is 12 months imprisonment

Note: On appeal to the District Court, the non-parole period was varied from 6 months to 5 months.

Key Takeaways

  • A breach of an ESO condition constitutes a very serious offence, as confirmed by the NSW Court of Appeal in Lynn v State of New South Wales; this characterisation reflects the community protection purpose underlying the ESO regime.
  • Where the breach of conditional liberty is itself the offence charged, being on conditional liberty at the time does not operate as a separate aggravating factor under section 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999.
  • A prior criminal record for repeated breaches of supervision orders does not automatically become a formal statutory aggravating factor, but it can substantially reduce the weight available to subjective mitigating considerations.
  • Community protection remains a paramount consideration at the sentencing stage for ESO breach offences, consistent with its centrality to the original order-making exercise.
  • Compelling subjective circumstances, including impending parenthood, a history of deprivation, and ongoing addiction, may ground a finding of special circumstances to reduce the non-parole period, but will not necessarily displace a term of full-time imprisonment where rehabilitation prospects are assessed as poor.

Legislation and Cases Referenced

Legislation
- Crimes (High Risk Offenders) Act 2006 (NSW), ss 3, 12
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A, 66
- Crimes (Administration of Sentences) Act 1999 (NSW), s 160A
- Drug Misuse and Trafficking Act 1985 (NSW), s 12

Cases
- Bugmy v The Queen [2013] HCA 37
- Fangaloka v R [2020] HCASL 12
- Hordern v R [2019] NSWCCA 138
- Karout v R [2019] NSWCCA 253
- Lynn v State of New South Wales [2019] NSWCA 300
- Muldrock v The Queen [2011] HCA 89
- R v Borkowski [2009] NSWCCA 102
- R v Doan (2000) 50 NSWLR 115
- R v Fangaloka [2019] NSWCCA 173
- R v Henry [1999] NSWCCA 111
- R v Thomson; R v Houlton [2000] NSWCCA 309
- Rushby [1977] 1 NSWLR 594
- State of New South Wales v BG (Final) [2019] NSWSC 200
- State of New South Wales v Davison (Final) [2019] NSWSC 1140
- State of New South Wales v DK (Preliminary) [2018] NSWSC 1947
- State of New South Wales v McQuilton (Final) [2019] NSWSC 265
- Veen v The Queen (No 2) [1988] HCA 14