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District Court 25 May 2021

R v Haggart and Brooks

[2021] NSWDC 406

Assault & violenceTheft & propertyFirearms & weapons
CRIME SENTENCE AGGRAVATED ROBBERY POSSESS UNAUTHORISED PISTOL

Citation: R v Haggart and Brooks [2021] NSWDC 406
Court: District Court of New South Wales
Date: 25 May 2021
Judge: Bourke SC DCJ

Background

Two offenders, referred to here as the first offender and the second offender, were sentenced in relation to a series of serious offences committed in September and October 2019. The first offender faced three separate charges: aggravated robbery, possession of an unauthorised pistol, and causing grievous bodily harm with intent. The second offender was sentenced for the grievous bodily harm offence only.

The first incident, on 16 September 2019, involved the first offender confronting two young men in a car park at a shopping centre. He punched one victim in the face, stole a neck chain, and then retrieved a replica pistol from a nearby vehicle, pointing it at the victims as they drove away. Telephone calls later recorded from custody contained clear admissions by the first offender to the robbery.

The second incident, on 3 October 2019, involved both offenders entering a victim's home in St Marys in the early morning while the victim slept. When the victim confronted them at their vehicle, the first offender was overheard saying "He is alone, let's kill him." Both offenders then dragged the victim back into his home and subjected him to a sustained and brutal assault, causing very serious injuries including broken bones, lacerations, and significant blood loss.

  • What sentences were appropriate for each offender given the gravity of the offences, their personal circumstances, and their respective pleas of guilty?
  • What discount should apply to each offender's sentence for their guilty plea, given the different timing of those pleas?
  • Whether special circumstances existed to justify varying the statutory ratio between the non-parole period and the head sentence.
  • How principles of totality, concurrency, and accumulation should apply to the first offender, who was being sentenced for offences arising from two separate incidents.

Decision

The court applied a 25% discount to the first offender's sentences, reflecting his early guilty plea and its utilitarian value. The second offender, who indicated a plea on 1 April 2021 and entered it on 8 April 2021, shortly before a trial listed for 12 April 2021, received only a 5% discount under section 25D(2)(c) of the Crimes (Sentencing Procedure) Act 1999.

In assessing the grievous bodily harm offence, the court treated both offenders as principals of equal criminality. The assault on the home occupant was prolonged and vicious, involving repeated stomping and striking, and left the victim with fractures to the eye socket and foot, significant lacerations, and substantial blood loss. The court found both offenders had significant prior criminal histories and gave detailed consideration to their respective personal circumstances, including disadvantaged backgrounds, drug dependency, and mental health issues.

For the first offender, the court applied the principles in Bugmy v The Queen regarding the ongoing relevance of profound childhood disadvantage in mitigation. The court balanced those matters against the objective seriousness of the offending. Applying totality principles and considering the need to avoid a crushing sentence while preserving prospects of rehabilitation, the court imposed an aggregate sentence rather than separate cumulative terms.

For the second offender, sentenced only for the grievous bodily harm count, the court imposed a head sentence of five years and three months, with a non-parole period of two years and nine months. Special circumstances were found in relation to both offenders, based on the risks of institutionalisation, drug rehabilitation needs, and, in the first offender's case, mental health concerns.

Orders Made

First offender (Haggart):
- Aggregate head sentence of 7 years and 10 months imprisonment
- Non-parole period of 4 years and 10 months
- Sentence to date from 25 July 2020
- Head sentence to expire 24 May 2028; non-parole period to expire 24 May 2025

Indicative sentences (first offender):
- Causing grievous bodily harm with intent: 6 years (non-parole period 3 years 8 months), after 25% discount from a starting point of 8 years
- Aggravated robbery: 3 years, after 25% discount from a starting point of 4 years
- Possess unauthorised pistol: 2 years 6 months (non-parole period 1 year 6 months), after 25% discount from a starting point of 3 years 6 months

Second offender (Brooks):
- Head sentence of 5 years and 3 months imprisonment
- Non-parole period of 2 years and 9 months
- Special circumstances found for both offenders

Key Takeaways

  • The timing of a guilty plea directly affects the available discount: an early plea attracted a 25% reduction, while a plea entered days before trial attracted only 5% under section 25D(2)(c) of the Crimes (Sentencing Procedure) Act 1999.
  • Where two offenders are sentenced as principals of equal criminality for the same offence, the court may nonetheless impose different head sentences to reflect differences in their overall criminality and the number of charges each faces.
  • Profound childhood disadvantage, as confirmed in Bugmy v The Queen, remains a relevant mitigating factor in sentencing, even where an offender has an extensive criminal history, because the causal connection between that disadvantage and offending does not diminish over time.
  • An aggregate sentencing approach requires the court to nominate indicative sentences for each component offence; those indicative sentences inform the construction of the aggregate but are not individually enforceable.
  • Special circumstances justifying a departure from the standard non-parole period ratio can be established by factors including the risk of institutionalisation from lengthy incarceration, the need for drug rehabilitation post-release, and mental health considerations.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33(1)(b), 95(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 25D(2)(c)
- Firearms Act 1996 (NSW), s 7(1)

Cases:
- Azzi v R [2008] NSWCCA 169
- Bugmy v The Queen [2013] 302 ALR 192
- R v Henry [1999] 46 NSWLR 346