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District Court 1 October 2021

R v Vute

[2021] NSWDC 639

Assault & violenceTheft & property

Citation: R v Vute [2021] NSWDC 639
Court: District Court of New South Wales
Date: 1 October 2021
Judge(s): Bennett SC DCJ

Background

The offender, a 41-year-old man with an extensive criminal history, pleaded guilty in the Local Court to two residential break-and-enter offences committed in September and October 2020. The first offence involved breaking and entering a dwelling at Redfern in the early hours of the morning while the occupant was present and asleep inside. The second involved entering a dwelling at Rosebery while the occupant was briefly away, during which the offender assaulted the returning occupant.

At the time of both offences, the offender was on parole from earlier sentences. He had been released to parole on 6 June 2020 and reoffended within approximately three and a half months. His parole was subsequently revoked and he remained in custody.

Two additional offences were listed on a Form 1 in connection with the second charge: possession of a prohibited drug (Suboxone) and a common assault on the victim of the Rosebery break-in. The offender asked the court to take those matters into account when sentencing on the second principal offence.

  • What was the appropriate commencement date for the new sentence, given that the offender had been serving the balance of a revoked parole period in custody?
  • How should the Form 1 offences (assault and drug possession) affect the sentence for the second principal offence?
  • What weight should be given to the offender's guilty pleas, criminal history, background, prospects of rehabilitation, and personal circumstances?
  • What aggregate sentence was appropriate across the two principal offences?

Decision

Commencement date and pre-sentence custody. The court applied the principles from Callaghan v R [2006] NSWCCA 58, which recognised a discretion in sentencing courts to determine when a new sentence commences after parole revocation. Bennett SC DCJ found that, because the reoffending occurred within a very short time of release on parole and the balance of parole was relatively brief, it was appropriate to treat the pre-sentence custody referable to the revoked parole as related to the earlier offences rather than the new ones. The aggregate sentence was backdated to commence on 1 January 2021, providing a modest overlap with the parole balance that expired on 23 January 2021.

Form 1 offences. The court certified the Form 1 and increased the sentence for the second principal offence beyond what would otherwise have been imposed. The assault was described as serious. The increase reflected the need for greater personal deterrence and the community's entitlement to retribution for the full extent of the offender's conduct. The offender received the benefit of avoiding separate punishment for those additional matters, and the court credited him for facilitating the proceedings by admitting guilt.

Objective seriousness and personal circumstances. Both offences were treated as serious. The first involved entering a dwelling at 3am while the occupant was present inside, which the court found must have been obvious to the offender at the time. The second involved an assault on the victim when she returned home. The court accepted that the offender's background included significant disadvantage, institutional exposure through the juvenile justice system, and a long history of drug misuse. However, the court did not accept that any impaired mental state was as significant as submitted by defence counsel, and it rejected good prospects of rehabilitation while accepting genuine contrition and remorse. The court also accepted a finding of institutionalisation.

Guilty plea discount. A 25% discount was applied to each principal offence to reflect the early guilty pleas.

Orders Made

  • The offender was convicted of both principal offences.
  • The Form 1 was certified.
  • An aggregate sentence of imprisonment was imposed, comprising:
  • A non-parole period of 2 years and 6 months, commencing 1 January 2021 (eligible for parole on 30 June 2023)
  • A head sentence of 4 years and 3 months
  • The component sentences (before aggregation) were:
  • Aggravated break and enter with intent to steal: 3 years (after 25% guilty plea discount)
  • Enter dwelling with intent, including Form 1 offences: 2 years and 6 months (after 25% guilty plea discount)
  • Special circumstances were found, including the extended period of pre-sentence custody.

Key Takeaways

  • Where an offender reoffends very shortly after release on parole and the revoked parole balance is short, the sentencing court retains a discretion under Callaghan v R to commence the fresh sentence at a date that reflects the relationship between pre-sentence custody and the earlier offences, rather than mechanically commencing from the expiry of the parole period.

  • Form 1 offences increase the sentence for the principal offence to which they attach, but the offender avoids separate punishment for each listed matter. The increase must reflect the totality of the misconduct, with particular attention to personal deterrence and retributive considerations.

  • A 25% guilty plea discount applied in this matter, consistent with the established approach to early pleas entered in the Local Court.

  • Disadvantaged background and a history of drug dependence connected to institutional exposure in the juvenile justice system are relevant mitigating factors, but do not automatically translate into findings of significantly impaired mental state or strong rehabilitation prospects. The District Court assessed those claims critically against the evidence.

  • Extended pre-sentence custody beyond the period covered by the new sentence can itself constitute a special circumstance justifying adjustment to the ratio between the non-parole period and the head sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61, 111(1), 113(2), 114
- Crimes (Sentencing Procedure) Act 1999 (NSW), including Part 4 div 1A and s 37
- Drug Misuse and Trafficking Act 1985 (NSW), s 10(1)

Cases
- Attorney-General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518
- Bugmy v The Queen [2013] HCA 37
- Callaghan v R [2006] NSWCCA 58
- Director of Public Prosecutions (Commonwealth) v De La Rosa [2010] NSWCCA 194
- Markarian v R [2005] HCA 25
- Osenkowski (1982) 30 SASR 212
- R v Carver (2003) NSWCCA 243
- R v Harris (2007) NSWCCA 130
- Tepania v R [2018] NSWCCA 247
- Veen v The Queen (No 2) [1988] HCA 14
- Walsh v R (2020) NSWCCA 183