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District Court 14 May 2021

R v Bridge

[2021] NSWDC 529

Assault & violenceTheft & property

Citation: R v Bridge [2021] NSWDC 529
Court: District Court of New South Wales
Date: 14 May 2021
Judge: Bright DCJ

Background

The offender, a 33-year-old man, was found guilty after trial of aggravated break and enter and commit a serious indictable offence (intimidation), contrary to s 112(2) of the Crimes Act 1900 (NSW). The aggravating circumstance was that he knew persons were present inside the dwelling. The offence occurred on 17 December 2018 at a residential property in Charmhaven.

The victim was in the process of moving out of the property with his pregnant partner, their three-year-old daughter, and the partner's grandfather. The offender and a neighbour entered the premises uninvited, and the offender ran upstairs, pushed the pregnant partner aside, forced the victim into a bathroom, and punched him repeatedly in the face. The victim suffered bruising to the face, a split lip, and a bloodied nose.

The Court also dealt with a common assault charge concerning the partner's grandfather, who was grabbed and shoved by the co-offender while the offender was present and ready to assist. Separately, the offender was already serving a six-year Commonwealth sentence (with a non-parole period of three years and three months) for possessing a commercial quantity of a border-controlled drug, imposed in February 2021.

  • What was the appropriate objective seriousness of the aggravated break and enter offence and the common assault?
  • What weight should be given to the statutory aggravating factors, including that the offence was committed in the victim's home?
  • How should the offender's subjective circumstances, including mental health, affect the sentence?
  • How should the totality principle operate when imposing a sentence to be served partially cumulatively on an existing sentence?
  • Whether an adjusted ratio between non-parole period and balance of term was justified in the circumstances.

Decision

Bright DCJ assessed the objective seriousness of the break and enter offence as below the middle of the range, despite the violence involved and the presence of multiple persons in the home. The Court accepted the Crown's reliance on the statutory aggravating factors of offending in company, use of corporal violence, and infliction of actual bodily harm, as well as the further aggravating factor that the offence occurred in the victim's home.

On the common assault, the Court found the offender guilty as a participant in a joint criminal enterprise with his co-offender, even though he had no direct physical contact with the grandfather. That offence was assessed at the lowest level of objective seriousness.

The Court considered the offender's subjective circumstances, including his mental health history, his limited prior criminal record, and the fact that he had been in custody since July 2019 on the unrelated Commonwealth matter. The Court applied the totality principle, recognising that the new sentence would run partially cumulatively on the existing Commonwealth sentence. Bright DCJ concluded that if the standard ratio between non-parole period and balance of term were maintained, the total effective sentence would not properly reflect the overall criminality. Accordingly, the ratio was adjusted to ensure proportionality across the combined sentences.

For the common assault, the Court determined that imprisonment was not warranted and imposed a community correction order.

Orders Made

  • Count 1 (aggravated break and enter and commit serious indictable offence): convicted and sentenced to 3 years imprisonment, with a non-parole period of 12 months commencing 16 July 2022 and expiring 15 July 2023, with a balance of term expiring 15 July 2025.
  • Common assault (s 166 certificate matter): convicted and sentenced to a community correction order of 12 months commencing 14 May 2021, with conditions of good behaviour and attendance before the Court if called upon.
  • Combined total effective sentence: 6 years imprisonment with a combined non-parole period of 4 years.

Key Takeaways

  • The District Court confirmed that offending involving violence inside a victim's home attracts condign punishment, consistent with the Court of Criminal Appeal's observation in Haines v The Queen that community members are entitled to feel safe in their own homes.
  • A participant in a joint criminal enterprise can be convicted of common assault even where they had no direct physical contact with the victim, provided they were present and ready to assist the principal offender if called upon.
  • Where a new sentence is to be served partially cumulatively on an existing sentence, the totality principle may require an adjustment to the ratio between the non-parole period and the balance of term, to ensure the combined effective sentence properly reflects the full criminality involved.
  • Absence of a victim impact statement does not prevent a sentencing court from accepting that an offence was highly distressing to the victim; the statutory purpose of recognising harm to victims under s 3A(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW) remains relevant.
  • Objective seriousness below the middle of the range did not preclude a sentence of full-time imprisonment, given the nature of the offending, the aggravating factors established, and the purposes of both general and specific deterrence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61, 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5(1), 54B(2)
- Criminal Code Act 1995 (Cth), s 307.8(1)

Cases:
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Haines v The Queen [2012] NSWCCA 238
- R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381