Citation: R v Arvinthan [2021] NSWDC 253
Court: District Court of New South Wales
Date: 25 February 2021
Judge: Bourke SC DCJ
Background
The offender was sentenced for two offences committed in late December 2019, together with a related stealing offence dealt with on a Form 1 document. The first offence involved entering a dwelling house with intent to steal, targeting the home of a woman who had left her rear doors slightly ajar on a hot night. The offender entered her bedroom while she slept, and fled when she awoke and confronted him.
The second and more serious offence occurred two nights later. The offender broke into the bedroom of a 17-year-old woman at a separate address on the Great Western Highway, Pendle Hill, entering through a window by removing a flyscreen. He lay down beside her while she slept and touched her thigh, both beneath and over her bedcovers. She awoke, screamed at him to leave, and he fled through the window. She photographed him as he ran, and police arrested him nearby shortly after.
In two subsequent police interviews, the offender made admissions. He confirmed he had entered the second victim's room after seeing her through the window and finding her attractive, acknowledged he lacked her consent to touch her, and conceded he had been standing next to the first victim's bed. The offender pleaded guilty at an early stage to both offences.
Legal Issues
- What indicative sentences were appropriate for each offence, applying the standard non-parole period and maximum penalties as guideposts?
- What aggregate sentence, reflecting totality principles, was appropriate for two separate offences committed on consecutive nights against different victims?
- Whether special circumstances existed to justify a departure from the standard ratio between the non-parole period and head sentence?
- How prior custody served for a separate offence should be accounted for in fixing the commencement date of the aggregate sentence?
Decision
His Honour applied a 25 per cent discount to each indicative sentence to reflect the offender's early guilty pleas. For the entering-dwelling-with-intent offence (including the Form 1 stealing matter), the discounted indicative sentence was two years' imprisonment. For the aggravated break and enter with sexual touching, which carries a maximum of 20 years and a standard non-parole period of five years, the discounted indicative sentence was a head sentence of three years and four months, with a non-parole period of two years.
Rather than accumulating those terms, His Honour applied totality principles to arrive at an aggregate sentence. The aggregate head sentence was four years and six months, with a non-parole period of two years and nine months. This reflected the need to ensure the overall sentence was not crushing or overwhelming, a principle expressly noted in the remarks.
Special circumstances were found to exist, justifying a non-parole period proportionally shorter than the standard ratio. The basis was the offender's relative youth and the fact that this period in custody represented his first time in prison. His Honour also directed that psychological reports prepared for sentencing be forwarded to the Department of Corrective Services and Justice Health.
The sentence was backdated to 1 March 2020, taking into account a three-month term the offender had already served for a separate offence committed on 4 December 2019. The head sentence was accordingly set to expire on 31 August 2024, with the non-parole period expiring on 31 November 2022.
Orders Made
- Aggregate head sentence of four years and six months' imprisonment, commencing 1 March 2020 and expiring 31 August 2024.
- Non-parole period of two years and nine months, expiring 31 November 2022.
- Indicative sentence for the sequence 4 offence (entering dwelling with intent, including Form 1 stealing): two years' imprisonment after 25 per cent discount.
- Indicative sentence for the sequence 7 offence (aggravated break and enter with sexual touching): head sentence of three years and four months, non-parole period of two years, after 25 per cent discount.
- Direction that the revised remarks on sentence, together with two psychological reports, be provided to the Department of Corrective Services and Justice Health.
Key Takeaways
- The District Court confirmed that maximum penalties and, where applicable, standard non-parole periods function as important guideposts in the sentencing exercise, not as ceilings to be approached only in the worst cases.
- An early guilty plea attracted a 25 per cent discount across both offences, consistent with established sentencing practice under the Crimes (Sentencing Procedure) Act 1999.
- Totality principles required the court to construct an aggregate sentence that, when combined with prior custody already served, did not produce an overall term that was overwhelming or crushing.
- Special circumstances were established on the facts of this case through the combination of the offender's relative youth and his first period of imprisonment, justifying a proportionally shorter non-parole period.
- Where an offender has already served custody for a separate offence during the relevant period, the sentencing court may adjust the commencement date of a new sentence to avoid effective double-counting of that earlier term.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 3A (purposes of sentencing)
Cases
- Ponfield v R [1999] 48 NSWLR 327
- Bugmy v R (2013) 302 ALR 192