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2
District Court 20 September 2021

R v Colvin (No 2)

[2021] NSWDC 494

Assault & violenceTheft & propertyDomestic & family violence
19 CONSIDERED

Citation: R v Colvin (No 2) [2021] NSWDC 494
Court: District Court of New South Wales
Date: 20 September 2021
Judge(s): Haesler SC DCJ

Background

Following a judge-alone trial, the offender was convicted of aggravated break and enter with intent to commit an indictable offence (intimidation), knowing others to be present, contrary to s 112(2) of the Crimes Act 1900 (NSW). Two related offences, common assault and destroy or damage property, were also before the court. All three offences arose from a single incident involving the offender's sister at her home in Warrawong on 27 July 2020.

The offender, then 45, had arrived at his sister's home wet and distressed. After a missing personal bag prompted an argument, he became aggressive, was locked out, forced re-entry through a window, kicked in his sister's bedroom door, struck her head multiple times, and threatened to burn her home and car. The offender was on parole at the time, had not been compliant with medication for treatment-resistant schizophrenia, and had spent the vast majority of his adult life in custody.

The sentencing hearing was delayed because the offender contracted COVID-19 while held at Parklea Correctional Centre and was placed in isolation. The judge addressed both the health impacts of that infection and the broader custodial conditions created by the pandemic as relevant factors on sentence.

  • How to assess the objective seriousness of an aggravated break-and-enter committed against a family member in a domestic violence context
  • What weight to give the offender's decision to elect a judge-alone trial and cooperate with the course of justice during the pandemic, pursuant to s 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • How to account for COVID-19's direct effects on the offender while in custody (infection, isolation, reduced programmes and visits)
  • How to balance the offender's lengthy criminal history and parole breach against significant subjective mitigating factors including childhood deprivation, mental illness, and institutionalisation
  • Whether special circumstances existed to justify a longer-than-usual parole period
  • How to apply the principles of accumulation and totality across the three offences

Decision

Haesler SC DCJ assessed the offending as serious despite the relatively minor physical injury sustained. The breach of trust involved in attacking a sibling in her own bedroom, the multiple blows to the head, the violent destruction of the door, and the serious verbal threats collectively warranted meaningful punishment. The standard non-parole period of five years (applicable to the principal offence) was acknowledged but was not treated as a dominant factor given the particular circumstances.

The judge applied a 5% reduction to the indicated sentences under s 22A, recognising that electing a judge-alone trial and cooperating to narrow the issues during the pandemic carried greater mitigating weight than equivalent cooperation in ordinary times, consistent with recent Victorian Court of Appeal decisions in Worboyes v R and Chenhall v R. The COVID-19 infection itself, the period of isolation, loss of social visits, reduced programme access, and additional lockdowns in custody were all treated as hardships bearing on the severity of the sentence actually served.

On the subjective case, the judge gave substantial weight to the offender's background of childhood deprivation and abuse, his treatment-resistant schizophrenia (which worsened in custody), and his profound institutionalisation, noting that only two significant gaps in his custodial history existed, one linked to a stable relationship. Consistent with Bugmy v The Queen, the court found that a deprived background does not diminish in weight merely because it is longstanding. The criminal history, including a prior sentence of five-and-a-half years for aggravated break-and-enter, required a more severe penalty to address retribution, specific deterrence, and community protection, but the sentence had to remain proportionate.

Special circumstances were found to exist, justifying a reduction in the ratio of non-parole period to head sentence. A longer parole period was considered to serve community protection by maximising the prospect of supervised reintegration and the effectiveness of any treatment plan for the offender's mental illness. The aggregate sentence was structured to commence on 6 February 2021 to account for the parole revocation and the Local Court matters already dealt with.

Orders Made

  • Aggravated Break Enter and Commit Indictable Offence (Intimidation): 2 years and 10 months imprisonment with a non-parole period of 1 year and 8 months (after 5% discount under s 22A)
  • Common Assault: 1 year imprisonment
  • Destroy or Damage Property: 8 months imprisonment
  • Aggregate sentence: 3 years and 2 months imprisonment
  • Non-parole period: 2 years, commencing 6 February 2021 and expiring 5 February 2023
  • Balance of sentence: 1 year and 2 months, commencing 6 February 2023 and expiring 5 April 2024
  • Eligible for release to parole on 5 February 2023

Key Takeaways

  • A 5% sentencing discount under s 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW) was applied where the offender elected a judge-alone trial and narrowed the issues during the COVID-19 pandemic, with the District Court accepting that such cooperation carries greater mitigating weight during the pandemic than in ordinary circumstances.

  • Contracting COVID-19 in custody, enduring isolation, and experiencing reduced programme access and social visits are all sentencing factors that courts may take into account when synthesising an appropriate penalty.

  • Under Bugmy v The Queen, the mitigating force of a deprived and abusive childhood does not diminish over time simply because the offender has a long history of offending, and the District Court applied this principle fully despite the offender's extensive criminal record.

  • Special circumstances justifying a reduced non-parole period to head-sentence ratio may be established where an offender's mental illness and deep institutionalisation mean that a longer supervised parole period better serves both rehabilitation and community protection.

  • A domestic violence context and breach of familial trust are factors that elevate the seriousness of break-and-enter offences even where the physical injuries inflicted are relatively minor.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61, 112(2), 195(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22A, 54A(2)
- Crimes (Administration of Sentences) Act 1999 (NSW), s 276
- Criminal Procedure Act 1986 (NSW), s 166

Cases:
- Bugmy v The Queen (2013) 249 CLR 571
- Chenhall v R [2021] VSCA 175
- Courtney v R [2007] NSWCCA 195; (2007) 172 A Crim R 371
- DPP v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
- Droudis v R [2020] NSWCCA 322
- Engert v R (1995) 84 A Crim R 67
- Jinnette v R [2012] NSWCCA 217
- R v Colvin [2021] NSWDC 390 (the trial judgment)
- R v Hemsley [2004] NSWCCA 228
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346
- R v Israil [2002] NSWCCA 255
- R v McNaughton (2006) 66 NSWLR 566
- Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
- Worboyes v R [2021] VSCA 169