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District Court 2 September 2021

R v Spinks

[2021] NSWDC 452

DrugsTheft & propertyFirearms & weaponsPublic order & justice offences
CRIME MULTIPLE OFFENCES RECEIVING STOLEN MOTOR VEHICLE POSSESS DEFACED FIREARM SENTENCING RELEVANT FACTORS ON SENTENCE MULTIPLE OFFENCES

Citation: R v Spinks [2021] NSWDC 452
Court: District Court of New South Wales
Date: 2 September 2021
Judge(s): Haesler SC DCJ

Background

The offender had previously been sentenced in the Supreme Court to 20 years and 10 months imprisonment (with a non-parole period of 15 years and 7 months) for the premeditated murder of a criminal associate, committed on 14 February 2018. That sentence commenced on 12 August 2018, making the offender ineligible for parole consideration until 11 March 2034.

The District Court was then required to sentence the offender for a separate cluster of serious offences committed between January 2018 and July 2018, broadly contemporaneous with the murder. Those offences fell into four groups: supply of a commercial quantity of MDA; receiving a stolen motor vehicle, supplying a shortened firearm without authority, and intentionally destroying property by fire; supply of methylamphetamine and hindering a serious offence investigation; and possession of a defaced firearm.

Several of those charges were accompanied by Form 1 matters (additional offences taken into account at sentencing without a separate conviction), including possession of explosives, participation in a criminal group, and various Firearms Act breaches. The court was required to impose an aggregate sentence that, when considered alongside the murder sentence, was just and appropriate to the totality of the offending.

  • How should an aggregate sentence be structured for multiple serious offences when a lengthy existing sentence for murder is already on foot?
  • What weight should be given to totality, concurrence, and accumulation principles when the offending largely overlapped in time with the murder?
  • How should guilty plea discounts apply across different offence groups, given that the pleas were entered at different stages?
  • What, if anything, remained to be achieved by the new sentence given that the purposes of punishment were substantially addressed by the existing murder sentence?

Decision

Haesler SC DCJ approached the sentencing task by first identifying an appropriate indicative sentence for each offence individually, then constructing an aggregate sentence that was just in light of the totality of the offender's criminal conduct. The court was conscious that many of the purposes of sentencing, including deterrence, punishment, and community protection, were already substantially served by Justice Hamill's murder sentence. The offender cannot be released until at least March 2034 and remains subject to the Serious Offenders Review Council and the Crimes (High Risk Offenders) Act 2006 (NSW) on release.

The court found that the new aggregate sentence needed to do no more than add meaningfully to the period the offender must spend in custody before becoming eligible for parole consideration. The structure adopted was for the new aggregate sentence to run cumulatively on the existing murder sentence, with the new non-parole period commencing in March 2032 and expiring in March 2036. This arrangement extends the total minimum period in custody by approximately two years beyond what the murder sentence alone would require, while still allowing a parole supervision period after the new non-parole period expires.

Guilty plea discounts were applied at 25% for the Group 3 offences and 10% for the others, reflecting the different timing of the pleas. The court also found special circumstances, which is the legal basis for departing from the standard ratio between the non-parole period and the balance of a sentence (ordinarily one third of the total sentence must be set aside as parole time; a finding of special circumstances allows the court to increase that proportion). Rounding was applied generally to the offender's advantage.

Orders Made

Indicated sentences for individual offences:

  • Supply commercial quantity of prohibited drug (MDA): 2 years 8 months, non-parole period 1 year 4 months
  • Receiving stolen motor vehicle: 11 months
  • Supply shortened firearm without authority: 3 years 7 months
  • Intentionally damage/destroy property by fire (motor vehicle), including Form 1 matters: 2 years 8 months
  • Supply prohibited drug (methylamphetamine), including Form 1 matters: 3 years
  • Acquire ammunition (accessory after the fact): 1 year 6 months
  • Hinder investigation of serious offence, including Form 1 matters: 9 months
  • Possess defaced firearm (30/30 Winchester lever action rifle), including Form 1 matters: 2 years 8 months

Aggregate sentence:

  • Total aggregate sentence: 7 years 6 months
  • Non-parole period: 4 years, commencing 11 March 2032 and expiring 10 March 2036
  • Balance of sentence: 3 years 6 months, commencing 11 March 2036 and expiring 10 September 2039
  • Parole eligibility date: 10 March 2036
  • All remaining "back up" Criminal Procedure Act matters not subject to a sentence or included in a Form 1 were withdrawn and dismissed

Key Takeaways

  • Where a lengthy existing sentence already substantially satisfies the purposes of criminal punishment, a sentencing court may properly limit the additional custodial burden imposed by a new aggregate sentence to what is necessary to reflect the seriousness of the further offending without producing a disproportionate total.

  • The totality principle requires that both the individual sentences and the aggregate sentence be structured so that the combined effect of all sentences is just and appropriate to the offender's overall criminality, not merely the sum of each offence considered alone.

  • A finding of special circumstances permits the court to adjust the ratio between the non-parole period and the parole period, and is relevant where a longer period of post-release supervision is warranted.

  • Guilty plea discounts are applied on an offence-by-offence basis according to the stage at which each plea was entered, and different discount rates may apply across different groups of charges within the same sentencing exercise.

  • The existence of supervision mechanisms such as the Serious Offenders Review Council and the Crimes (High Risk Offenders) Act 2006 (NSW) is a relevant consideration when the court structures a sentence for a serious offender who will remain subject to those regimes after release.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Crimes (High Risk Offenders) Act 2006 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Drug (Misuse and Trafficking) Act 1985 (NSW)
- Firearms Act 1996 (NSW)
- Summary Offences Act 1988 (NSW)
- Weapons Prohibition Act 1998 (NSW)

Cases:
- Mill v The Queen (1988) 166 CLR 59
- Green v The Queen (2011) 244 CLR 462
- Postiglione v The Queen (1997) 189 CLR 295
- Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
- Afu v R [2017] NSWCCA 246
- R v Cahyadi [2007] NSWCCA 1; 168 A Crim R 41
- R v Glynatsis [2013] NSWCCA 131
- Mbele v R [2021] NSWCCA 182
- Jadron v R [2015] NSWCCA 217
- Hamzy v R (1994) 74 A Crim R 341
- R v Dekker; R v Kominkovski [2021] NSWDC 186
- R v Frankcom [2021] NSWDC 294
- R v Kinzett [2021] NSWDC 339
- R v Spinks [2021] NSWSC 649 (the antecedent murder sentence)