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District Court 18 August 2021

R v Harris-Merchant

[2021] NSWDC 501

Assault & violencePublic order & justice offences

Citation: R v Harris-Merchant [2021] NSWDC 501
Court: District Court of New South Wales
Date: 18 August 2021
Judge(s): Bennett SC DCJ

Background

The offender pleaded guilty in the Local Court to a charge of affray under s 93C(1) of the Crimes Act 1900, arising from an incident at Ultimo on 30 September 2020. The offence involved the use of unlawful violence towards an unidentified male in circumstances that would have caused a person of reasonable firmness to fear for their personal safety. The incident, a brawl involving at least four participants, was captured on CCTV, which ultimately enabled police to identify the offender by his tattoos after his arrest on 12 October 2020.

At the time of the offence, the offender was on parole from a prior sentence of six years and six months imposed for armed robbery and conspiracy offences, as well as subject to a conditional release order from a separate Local Court matter. His parole was revoked upon arrest. The offender was 25% discount on sentence for his early guilty plea.

  • When should the new sentence commence, given the offender was already serving the balance of a revoked parole period?
  • Whether special circumstances existed justifying a longer parole period relative to the non-parole period (that is, a departure from the standard one-third ratio under the Crimes (Sentencing Procedure) Act 1999)?
  • How should the principle of totality apply in the context of cumulative and concurrent sentencing?
  • What orders should be made in relation to the breached conditional release order from the separate Local Court matter?

Decision

Commencement of sentence: The District Court applied the principles in R v Callaghan [2006] NSWCCA 58, which confirmed that a sentencing court has discretion as to when a new sentence commences where a prior parole period has been revoked. The Court accepted the Crown's concession that there should be significant concurrence between the new sentence and the period already being served. Given the offending occurred just over a year into the parole period, the Court backdated the commencement of the sentence to 12 April 2021 rather than the date of the parole period's expiry.

Special circumstances: The Court disagreed with the Crown's submission that no special circumstances existed. Bennett SC DCJ found that the offender's age, criminal history, and the risk of institutionalisation together warranted a reduction in the non-parole period. An extended parole period was considered appropriate to provide continued supervision and support for rehabilitation.

Totality and subjective factors: The Court took the totality principle into account across the sentence as a whole. While the offender had demonstrated some capacity to address drug misuse, the Court was not satisfied that genuine remorse had been established under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999, noting that the offender's account of acting in defence of friends was inconsistent with the admitted facts.

Conditional release order: The Court revoked the conditional release order relating to a separate larceny offence from 2019, entered a conviction for that matter, but imposed no further penalty under s 10A of the Crimes (Sentencing Procedure) Act 1999.

Orders Made

  • Offender convicted of affray under s 93C(1) of the Crimes Act 1900.
  • Sentence of 2 years and 4 months imprisonment, commencing 12 April 2021.
  • Non-parole period of 1 year, expiring 11 April 2022.
  • Parole period of 1 year and 4 months, expiring 11 August 2023.
  • Conditional release order from the Newtown Local Court revoked; offender convicted of the underlying larceny offence; no additional penalty imposed under s 10A of the Crimes (Sentencing Procedure) Act 1999.
  • 25% discount applied to reflect the early guilty plea.

Key Takeaways

  • Under R v Callaghan, a sentencing court has a genuine discretion to determine when a new sentence commences where the offender is serving the balance of a revoked parole period, and may backdate the commencement to a point before the prior parole period expires.
  • The District Court found that special circumstances were established by the offender's age, criminal history, and risk of institutionalisation, justifying an extended supervision period on parole beyond the standard ratio.
  • Expressions of remorse will not satisfy s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 where the offender's account of events is inconsistent with the admitted facts.
  • A conditional release order that is breached by further offending may be revoked and a conviction entered, with the sentencing court retaining discretion to impose no additional penalty under s 10A.
  • Where an offender is serving time attributable to a revoked parole period, the principle of totality requires the court to consider the overall sentencing impact when fixing the commencement date and structure of any new sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 93C(1) (affray)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9(1)(b), 10A, 21A(3)(i), 25D(2)(a)
- Mental Health (Forensic Provisions) Act 1990 (NSW)

Cases
- R v Callaghan [2006] NSWCCA 58
- Imbornone v R [2017] NSWCCA 144
- R v Qutami [2001] NSWCCA 353