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District Court 19 February 2021

R v Drollet

[2021] NSWDC 27

Assault & violenceTheft & property
MULTIPLE OFFENCES OF AGGRAVATED LARCENY PARITY WITH CO ‑ OFFENDER

Citation: R v Drollet [2021] NSWDC 27
Court: District Court of New South Wales
Date: 19 February 2021
Judge: Mahony SC DCJ

Background

The offender pleaded guilty to three charges of aggravated steal from person under s 95(1) of the Crimes Act 1900 and one charge of steal from person under s 94 of the same Act. The offences were committed between 31 October and 11 December 2019. Two additional driving-related offences (being carried in a vehicle taken without consent) were placed before the court on Forms 1, meaning the court took them into account when sentencing without recording separate convictions.

Each index offence followed a similar pattern. The offender and her de facto partner, Braden Kerr, posed as buyers responding to Gumtree or Facebook Marketplace listings for mobile phones. Victims were lured into meeting the pair, at which point the phones were seized and the offenders drove away. In several incidents, victims were dragged along the road and suffered physical injuries before the vehicle escaped.

Kerr had already been sentenced by Judge King SC on 29 October 2020, receiving an aggregate sentence of 5 years and 6 months with a non-parole period of 3 years and 11 months. The offender's case required the court to consider parity with that sentence, as well as the offender's individual circumstances.

  • What aggregate sentence was appropriate for four index offences committed on separate occasions over approximately six weeks?
  • How should the sentence for this offender be calibrated against that of the co-offender Kerr, having regard to the parity principle?
  • Were special circumstances established under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (CSPA) to justify departing from the statutory ratio between the head sentence and the non-parole period?
  • How should prior time in custody be accounted for, including two discrete periods of remand?
  • What action, if any, was appropriate in relation to the two existing Community Correction Orders the offender was subject to at the time of offending?

Decision

The court imposed an aggregate sentence of 4 years and 6 months, which was less than that imposed on Kerr. The difference reflected the offender's lesser role in the actual violence and the fact that Kerr faced an additional charge (taking a conveyance without consent as a principal) that did not apply to the offender in the same way. The court applied the parity principle to ensure the disparity in sentences was justifiable on the facts.

On the question of cumulation, the court applied the principle that where separate offences occur on separate days and do not form a single episode of criminality, some accumulation is required to reflect the total criminality involved. Because the four index offences occurred on distinct dates across a three-month period, the court found that a purely concurrent approach would have inadequately reflected the overall gravity of the conduct.

The court found special circumstances existed under s 44(2) of the CSPA, based on the offender's need for an extended period of supervised parole to address significant mental health, drug, and alcohol issues. This finding was not opposed by the Crown. The court accordingly varied the usual statutory ratio, setting the non-parole period at 2 years and 3 months, which is exactly half the head sentence rather than the standard two-thirds minimum.

The sentence was backdated by 255 days to account for two separate periods the offender had spent on remand. The court declined to take any further action on the breach of the two Community Correction Orders that had been current at the time of the index offending.

Orders Made

  • Conviction entered on all four index offences (Sequences 5, 6, 8, and 9).
  • Aggregate sentence of 4 years and 6 months imprisonment imposed under s 53A of the CSPA.
  • Non-parole period of 2 years and 3 months, commencing 9 June 2020 and terminating 8 September 2022.
  • Balance of term of 2 years and 3 months commencing 9 September 2022 and expiring 8 December 2024.
  • Two Forms 1 matters (Sequences 7 and 10) certified as taken into account.
  • No further action taken on the breach of the two Community Correction Orders imposed on 15 May 2019.

Key Takeaways

  • An aggregate sentence of 4 years and 6 months was imposed on the offender, compared with 5 years and 6 months for the co-offender Kerr, with the disparity justified by differences in role, particularly the greater direct violence attributable to Kerr.
  • The parity principle requires that differences in sentences between co-offenders be explicable by reference to differences in culpability, role, or personal circumstances; the District Court applied this principle to arrive at a sentence lower than Kerr's.
  • Where multiple offences are committed on separate occasions over an extended period, some degree of accumulation of sentences is required so that the total sentence reflects the full criminality involved, rather than allowing later offences to be absorbed entirely into the sentence for the first.
  • Special circumstances under s 44(2) of the CSPA can be established on the basis of an offender's rehabilitative needs, including mental health and substance dependency, permitting the non-parole period to be set below the standard statutory minimum ratio relative to the head sentence.
  • Time spent in custody on remand across multiple distinct periods must be carefully accounted for in backdating the commencement of a sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 94, 95(1), 154A(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(2), 53A, 68(2)
- Evidence Act 1995 (NSW)

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Cahyadi v R 168 A Crim R 41; [2007] NSWCCA 1
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Moore v R [2005] NSWCCA 407
- Ranse v R (unreported, NSWCCA, 8 August 1994)
- R v Atonio (2005) 154 A Crim R 183
- R v Henry (1999) 46 NSWLR 346
- R v Pullen [2018] NSWCCA 264