AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 8 November 2021

R v LEE

[2021] NSWDC 601

Assault & violenceDomestic & family violencePublic order & justice offences
SENTENCE WOUNDING ON FORM 1 BREACH OF PAROLE FOR MANSLAUGHTER TOTALITY WHETHER “BUGMY” FACTORS ENLIVENED.

Citation: R v LEE [2021] NSWDC 601
Court: District Court of New South Wales
Date: 8 November 2021
Judge: Lerve DCJ

Background

The offender appeared for sentence on two substantive charges arising from separate incidents in the Wagga Wagga and Junee areas in October and July 2020. The first charge was Intimidation under the Crimes (Domestic and Personal Violence) Act 2007, involving the use of a gas blow torch to threaten a victim who had been robbed at knifepoint by co-offenders. The second and more serious charge was Specially Aggravated Detain for Advantage under the Crimes Act 1900, involving a home invasion in the early hours of the morning during which the victim was struck with a length of timber, held captive for approximately 90 minutes, and subjected to repeated demands for money and drugs.

A charge of Reckless Wounding was placed on a Form 1 document (meaning it was taken into account at sentencing without a separate conviction, as is the practice in NSW) in connection with the detention offence. The wounding occurred during the detention. The offender was also on parole at the time of the offending, following a prior conviction for manslaughter, and his Intensive Correction Order had been revoked.

The offender pleaded guilty at Wagga Wagga Local Court on 25 August 2021 and maintained those pleas at the District Court sentence hearing on 4 November 2021.

  • What sentence was appropriate for the Intimidation charge, having regard to the circumstances of the offending?
  • What sentence was appropriate for the Specially Aggravated Detain for Advantage charge, and what weight should be given to the Form 1 Reckless Wounding matter?
  • Whether the Bugmy factors (that is, the principle from Bugmy v The Queen [2013] HCA 37 that a deprived background can reduce moral culpability and this does not diminish with repeat offending) were engaged on the facts.
  • How the principles of totality should be applied across the two substantive sentences and the existing sentences (the parole balance and the revoked Intensive Correction Order) already being served.
  • Whether special circumstances existed to justify a non-parole period shorter than the statutory default of three-quarters of the head sentence.

Decision

His Honour applied the full 25% utilitarian discount for the early guilty pleas. On the Form 1 Reckless Wounding matter, Lerve DCJ applied the guideline in Attorney General's Application No. 1 of 2002 (the Form 1 Guideline Judgment), finding that an offence of that nature, committed while the victim was detained, had to produce some tangible impact on the ultimate sentence.

The court assessed the Specially Aggravated Detain for Advantage offence as serious. The victim was struck to the head upon waking, held captive for around 90 minutes, threatened repeatedly, forced to crawl along a hallway, and subjected to ongoing demands for money and drugs. The offending was premeditated, conducted with multiple co-offenders, and included the use of weapons. His Honour noted the offender took a directing role during the incident.

On the question of Bugmy factors, the court considered the offender's background but the judgment indicates His Honour did not find those factors significantly displaced the weight of the objective seriousness of the offending. The court also noted the offender's prior conviction for manslaughter and the fact that the offending occurred while on parole, both of which were relevant to the sentencing exercise.

To address totality across the two separate offences and the pre-existing sentences, His Honour imposed an aggregate sentence under section 53A of the Crimes (Sentencing Procedure) Act 1999, backdating the non-parole period. The backdating itself was treated as addressing totality in relation to the sentences already being served. Special circumstances were found, producing a non-parole period of 68% of the total sentence (rather than the standard 75%), with His Honour noting the offender's rehabilitation needs and the extended supervision that would follow release.

Orders Made

  • The offender was convicted on both charges.
  • An aggregate sentence of 6 years and 3 months was imposed, with a non-parole period of 4 years and 3 months.
  • The non-parole period was backdated to commence on 12 June 2021 and will expire on 11 September 2025.
  • The balance of term (2 years) commences 12 September 2025 and expires 11 September 2027.
  • Special circumstances were found; the non-parole period represents 68% of the total sentence.
  • The court recommended the offender's release to parole at the expiration of the non-parole period.
  • Taking into account sentences already being served, the total effective sentence was 6 years and 10 months, with actual custody of approximately 4 years and 10 months (around 70% of the total effective sentence).
  • Exhibits 1 and 2 were directed to be annexed to the warrant forwarded to the Department of Corrective Services.

Key Takeaways

  • A Form 1 offence of Reckless Wounding committed during a detention must produce some identifiable impact on the head sentence, consistent with the Attorney General's Application No. 1 of 2002 guideline.
  • Under section 53A of the Crimes (Sentencing Procedure) Act 1999, where two substantive matters arise from separate episodes of offending involving different victims, some degree of partial accumulation is appropriate to reflect the distinct criminality, even within an aggregate sentence.
  • Backdating the commencement of a non-parole period can itself serve as the mechanism for addressing totality in relation to sentences already being served at the time of sentencing.
  • The Bugmy principle, while always considered where a deprived background is raised, does not automatically reduce the weight given to objective seriousness, particularly where offending is serious, premeditated, and involves a directing role.
  • Special circumstances justifying a shorter non-parole period may be found where the offender has significant rehabilitative needs and would benefit from extended supervision in the community upon release.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), including ss 35(3), 86(3)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including ss 37, 53A

Cases
- Bugmy v The Queen [2013] HCA 37
- The Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act, No. 1 of 2002 (2002) 56 NSWLR 146 (Form 1 Guideline Judgment)
- Imbornone [2017] NSWCCA 144
- R v Speechley [2012] NSWCCA 130