AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 15 April 2021

R v Marley Dargin

[2021] NSWDC 179

Assault & violenceFraud & dishonestyTheft & propertyPublic order & justice offences

Citation: R v Marley Dargin [2021] NSWDC 179
Court: District Court of New South Wales
Date: 15 April 2021
Judge: Montgomery DCJ

Background

The offender, a young Aboriginal man born in September 2000, came before the District Court for sentencing across 11 counts. Ten of those counts (counts 2 to 11) were the subject of a severity appeal from a sentence imposed at Blacktown Local Court on 31 January 2020. Count 1 was a fresh matter dealt with by the District Court for the first time.

The offending occurred predominantly between the offender's 18th and 19th birthdays and spanned a range of property and dishonesty offences. These included aggravated entry of a dwelling in company, taking and driving a conveyance without consent, affray, larceny, multiple counts of dishonestly obtaining property by deception, dishonestly obtaining a financial advantage by deception, and receiving stolen property.

At the Local Court, the magistrate had dealt with the earlier offences by way of a Community Corrections Order (CCO). The offender was called up for breach of that order, which was then revoked, and an aggregate sentence of imprisonment was imposed. The offender appealed that aggregate sentence to the District Court on the ground that it was excessive.

  • Whether the aggregate sentence imposed by the Local Court on 31 January 2020 in respect of counts 2 to 11 was manifestly excessive
  • The appropriate sentence to be imposed on the severity appeal, with the District Court re-sentencing the offender from scratch on those counts
  • The appropriate sentence for count 1, the fresh matter before the District Court
  • How to apply the sentencing purposes under s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), including the proper weight to give the offender's youth, Aboriginal background, cognitive impairment, and other personal circumstances
  • The interaction of the fresh matter (count 1) with the sentences for counts 2 to 11 when constructing a just aggregate sentence

Decision

Montgomery DCJ allowed the severity appeal and set aside the Local Court sentence. The Court re-sentenced the offender across all 11 counts, imposing a single aggregate sentence of 2 years and 11 months' imprisonment, taken to have commenced on 1 October 2019.

The judgment reflects careful attention to the offender's personal circumstances. The offending was described as opportunistic rather than sophisticated, occurring at a formative period in the offender's life. His youth at the time of offending, his Aboriginal heritage, and his cognitive impairment were treated as significant mitigating factors, consistent with the principles set out in Bugmy v The Queen (2013) 249 CLR 571, which requires courts to take into account the effects of deprivation and disadvantage on moral culpability.

The Court also dealt with a procedural matter concerning the agreed facts for counts 6 and 7. The parties presented amended agreed facts incorporating the count 7 facts (identical to those in the original Court Attendance Notice), and counsel confirmed the plea of guilty to count 7 was maintained on that basis. The Court noted this approach as practically efficient and commended it as avoiding the need to remit the matter to the Local Court.

The non-parole period was set at 1 year and 9 months, also taken to have commenced on 1 October 2019, expiring on 30 June 2021. The Court made a series of recommendations to Corrective Services NSW and the State Parole Authority concerning the offender's rehabilitation, reflecting his identified needs across mental health, disability, literacy, vocational training, and cultural reconnection.

Orders Made

  • The sentence imposed at Blacktown Local Court on 31 January 2020 in respect of counts 2 to 11 was set aside
  • Section 11 bail ordered on 20 April 2020 was revoked
  • The offender was convicted of all 11 offences
  • An aggregate sentence of 2 years and 11 months' imprisonment was imposed under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), taken to have commenced on 1 October 2019 and expiring on 31 August 2022
  • A single non-parole period of 1 year and 9 months was set, commencing 1 October 2019 and expiring 30 June 2021
  • Recommendations were made that the offender be placed in the Assisted Services Unit at MSPC, Long Bay Correctional Centre
  • Recommendations were made for mental health assessment by Statewide Disability Services and Corrective Services psychologists
  • Recommendations were made for inpatient drug and alcohol counselling programs appropriate to his cognitive ability (including EQUIPS)
  • Recommendations were made for literacy, numeracy, and vocational skills training
  • Recommendations were made for engagement with the Creating Futures Justice Program (Weave or equivalent)
  • Recommendations were made for assistance to reconnect with the offender's Aboriginal heritage, land and place identification
  • Recommendations were made for assistance to access NDIS entitlements upon parole, including case management and supported accommodation
  • Recommendations were made that Corrective Services NSW and the State Parole Authority provide a copy of the judgment and expert reports to relevant service providers

Key Takeaways

  • The District Court allowed the severity appeal and re-sentenced the offender across 11 counts, exercising its own sentencing discretion rather than simply varying the Local Court's order.
  • Under the principles in Bugmy v The Queen, the offending history, Aboriginal background, cognitive impairment, and youth at the time of offending were treated as relevant to moral culpability and mitigation, not merely as background matters.
  • An aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) can incorporate both a fresh count and counts re-sentenced on appeal, with indicative terms assigned to each constituent offence.
  • Agreed facts were used efficiently by the parties to avoid remittal to the Local Court, a course the District Court expressly commended as appropriate and practical.
  • Sentencing courts retain the capacity to make detailed rehabilitation recommendations to Corrective Services NSW and the State Parole Authority, particularly where the offender has identified needs relating to disability, mental health, literacy, cultural connection, and substance use.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW): ss 93C(1) (affray), 111(2) (aggravated enter dwelling in company), 117 (larceny), 118(1), 154A(1)(a) (take and drive conveyance), 188(1) (receiving), 192E(1)(a) (dishonestly obtain property by deception), 192E(1)(b) (dishonestly obtain financial advantage by deception)
- Crimes (Sentencing Procedure) Act 1999 (NSW): ss 3A (purposes of sentencing), 5 (imprisonment as last resort), 11 (section 11 bail), 53A (aggregate sentencing)

Cases:
- Bugmy v The Queen (2013) 249 CLR 571
- R v Ponfield; R v Scott; R v Ryan and R v Johnson (1991) 48 NSWLR 327; [1999] NSWCCA 435