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District Court 12 November 2021

R v Rasmussen

[2021] NSWDC 620

DrugsTheft & propertyTraffic & driving
SENTENCING SEVERITY APPEAL FROM LOCAL COURT MULTIPLE DRIVING AND LARCENY OFFENCES AGGREGATE SENTENCE OF IMPRISONMENT CONSIDERATION OF BUGMY PRINCIPLES RECIDIVISM

Citation: R v Rasmussen [2021] NSWDC 620
Court: District Court of New South Wales
Date: 12 November 2021
Judge: Abadee DCJ

Background

The appellant pleaded guilty in the Penrith Local Court to eight offences committed between February and June 2021. The offences included three counts of driving whilst disqualified (second offence), two counts of possessing goods suspected of being stolen, one count of taking and driving a conveyance without the owner's consent, one count of possessing goods suspected stolen in or on premises, and one count of driving with an illicit drug present in blood.

The Local Court sentenced the appellant to an aggregate term of imprisonment of two years and six months, commencing 12 June 2021, with a non-parole period of 18 months. She appealed to the District Court on the ground that the sentence was excessive.

The appellant is an Aboriginal woman with a substantial prior record, including prior terms of imprisonment for similar driving offences. Evidence before the District Court included a letter confirming that a community support service specifically assisting Aboriginal women in the Nowra region would be accessible to her upon release.

  • Whether the aggregate sentence imposed by the Local Court was manifestly excessive
  • Whether the indicative sentences for the individual offences were appropriate, particularly the three driving whilst disqualified offences, which attracted the maximum penalty available to the Local Court
  • Whether adequate weight was given to the appellant's disadvantaged background under the principles in Bugmy v The Queen (2013)
  • Whether special circumstances existed justifying a variation to the standard non-parole period ratio

Decision

Abadee DCJ examined the objective seriousness of each offence and the appellant's credibility as a witness. His Honour found her explanations for the driving offences, including claims that she was fleeing former partners, difficult to accept. The facts as recorded in the court attendance notices were preferred, particularly given inconsistencies between the appellant's evidence and what she had told police at the time.

On the driving whilst disqualified offences, Abadee DCJ considered that an indicative sentence of nine months per offence, rather than the maximum of 12 months, would have been more appropriate. However, this difference did not affect the aggregate sentence, which his Honour found was not excessive. The taking and driving conveyance offence was noted as particularly serious, with his Honour observing that had it been brought in the District Court, it may have attracted a sterner sentence.

His Honour accepted that special circumstances existed, citing the appellant's disadvantaged background and the need for an extended parole period to support rehabilitation. The Bugmy principles, which require courts to give ongoing weight to the effects of profound social disadvantage when sentencing Aboriginal offenders, were applied. The letter from the Waminda support service was noted positively.

Applying the totality principle, Abadee DCJ found that the aggregate sentence appropriately reflected the overall criminality while avoiding a crushing effect. Concurrency was recognised for the three offences occurring on 12 June 2021 as part of the same episode. The remaining offences occurred on separate occasions and required the aggregate to reflect that cumulative criminality.

Orders Made

  • The severity appeal was dismissed.

Key Takeaways

  • In dismissing the appeal, the District Court confirmed that an aggregate sentence must reflect overall criminality across multiple separate episodes without being crushing, and that concurrency is generally appropriate only where offences form part of the same incident.
  • The Bugmy principles require ongoing recognition of profound social disadvantage in the background of Aboriginal offenders, and this consideration is not diminished by a lengthy prior record of similar offending.
  • Where an offender has a record of prior terms of imprisonment for the same type of offence and has repeatedly flouted disqualification orders, a sentencing court imposing maximum or near-maximum indicative sentences for those offences is unlikely to be found in error.
  • No error was established in the aggregate sentence, even though Abadee DCJ indicated he would have imposed slightly lower indicative sentences for the individual driving whilst disqualified offences, because the overall aggregate remained appropriate.
  • Special circumstances can be established where an extended parole period is required to facilitate rehabilitation, particularly where post-release support services are identified and available to the offender.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5

Cases:
- Bugmy v The Queen (2013) 249 CLR 571