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District Court 27 July 2021

R v Crawley

[2021] NSWDC 354

Theft & propertyFirearms & weaponsPublic order & justice offences
CRIME KNOWINGLY DRIVE STOLEN CONVEYANCE RELEVANT FACTORS ON SENTENCE MULTIPLE OFFENCES SHORT PERIOD OF OFFENDING BREACH OF BAIL

Citation: [2021] NSWDC 354
Court: District Court of New South Wales
Date: 27 July 2021
Judge: Haesler SC DCJ

Background

The offender, a 31-year-old man, came before the District Court for sentencing on seven indictable offences, with two further matters placed on Form 1 (meaning they were taken into account in the overall sentence without separate conviction). The offences were committed over a brief window between 23 February and 24 July 2020, spanning property crime, weapons possession, and a prison assault.

The offender had spent more than 10 of the previous 11 years in custody, and most of his teenage years in juvenile detention. His longest period in the community since 2010 was two months. The current offending began just four days after his release from Junee gaol in February 2020, and he was back in custody within weeks.

Guilty pleas were entered in the Local Court, entitling the offender to a 25% reduction on each sentence to reflect the utilitarian value of those early pleas.

  • How should an aggregate sentence be structured where an offender has committed multiple, varied offences across a short period?
  • What weight should be given to a deprived background and an inability to function in both the community and the custodial environment?
  • How does the principle of proportionality constrain sentencing where incarceration has demonstrably not operated as a deterrent?
  • What role does the prospect of rehabilitation play where the offender has an entrenched pattern of reoffending?
  • How should the court approach an in-custody offence (aiding an assault) when fashioning an overall sentence?

Decision

The court surveyed the offending chronologically. The property crimes committed in late February and March 2020 included using a stolen credit card, breaking into a home, and driving or being carried in stolen vehicles. The weapons offence arose when police found a gel capsule pistol modelled on a Smith and Wesson revolver in a car the offender occupied, with his DNA on the trigger and grip. The most serious matter for the purposes of the aggregate sentence involved the offender, while already on remand at Long Bay Prison, retrieving a prison-made shiv from a toilet block cavity and throwing it over a fence to a co-accused, who then used it to assault a fellow inmate.

Haesler SC DCJ gave detailed attention to the offender's background. The court acknowledged his deprived upbringing and applied the principle from Bugmy v The Queen (2013) 249 CLR 571 that such deprivation does not diminish with repeated offending and remains a relevant mitigating factor. At the same time, the court observed that the offender could not function in the community, could not adapt to custodial life, and that imprisonment had not served as an effective deterrent across his history.

The court was candid that further incarceration carried a limited deterrent effect for this particular offender, but found it remained necessary in light of the objective seriousness of the offences, the breach of bail conditions (including COVID-19 movement restrictions), and the in-custody offence. The court also noted the offender's apparent lack of insight into his circumstances, while expressing some cautious optimism that structured post-release support could assist him.

Two matters (the break and enter at the New Dapto Road property, and the associated bail breach) were remitted to the Local Court and did not form part of the sentence imposed. The court crafted an aggregate sentence designed to ensure the total term was proportionate to the overall criminality rather than crushing, consistent with the principle established in cases such as Mill v The Queen (1988) 166 CLR 59. Release to parole was flagged as contingent on a decision of the State Parole Authority under s 135(1) of the Crimes (Administration of Sentences) Act 1999.

Orders Made

Each sentence reflects a 25% reduction for early guilty plea:

  • Break and enter (steal, value up to $60,000): 2 years 3 months
  • Be carried in conveyance taken without consent of owner: 1 year 1 month
  • Drive conveyance taken without consent of owner: 1 year 1 month
  • Break and enter dwelling-house with intent to steal: 1 year 6 months
  • Dishonestly obtain property by deception (including Form 1 matter): 1 year
  • Aid and/or abet assault occasioning actual bodily harm (including Form 1 matter): 2 years 3 months
  • Possess unregistered, unauthorised pistol in a public place: 1 year 1 month

Total aggregate sentence: 3 years 3 months
Non-parole period: 2 years, commencing 30 March 2020 and expiring 29 March 2022
Balance of sentence: 1 year 3 months, expiring 29 June 2023
Parole eligibility date: 29 March 2022, subject to State Parole Authority determination

Key Takeaways

  • The District Court confirmed that a deprived background remains a mitigating factor at sentencing regardless of how many prior offences the offender has accumulated, consistent with the High Court's reasoning in Bugmy v The Queen.
  • Proportionality operates as a hard constraint: even where an offender poses a continuing risk, the total sentence cannot exceed what the objective circumstances of the offences warrant.
  • An in-custody offence, such as facilitating the delivery of a weapon to a co-accused who uses it to assault another inmate, can attract significant weight in the overall sentencing calculus.
  • Where incarceration has not functioned as a deterrent across a decade of repeated custody, a sentencing court may still impose a custodial term on grounds of proportionality and community protection, but should structure the sentence to maximise the prospect of rehabilitation upon release.
  • Early guilty pleas entered in the Local Court carried a consistent 25% utilitarian discount across all matters, applied before the aggregate sentence was constructed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 93I(2), 112(1)(a), 113(1), 154A(1)(b), 192E(1)(a)
- Crimes (Administration of Sentences) Act 1999 (NSW), s 135(1), s 253G(2)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW) (Form 1 procedure)

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Markarian v The Queen (2005) 228 CLR 357
- Mill v The Queen (1988) 166 CLR 59
- Veen v The Queen (No 2) (1988) 164 CLR 465
- Ryan v The Queen (2001) 206 CLR 267
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- Attorney General's Application No. 1 [2002] NSWCCA 518; 56 NSWLR 146
- R v MAK [2006] NSWCCA 381; 167 A Crim R 159
- R v Windle [2012] NSWCCA 222
- Ponfield v R (1999) NSWCCA 435; 48 NSWLR 327
- Kinzett v R [2021] NSWDC 339
- R v Herring (1956) 73 WN (NSW) 203