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District Court 3 December 2021

R v Leary

[2021] NSWDC 674

Assault & violenceTheft & propertyPublic order & justice offences
SENTENCE SEVE RITY APPEAL PROSPECTS OF REHABILITATION PRINCIPLE OF TOTALITY AGGREGATE SENTENCE OF IMPRISONMENT

Citation: R v Leary [2021] NSWDC 674
Court: District Court of New South Wales
Date: 3 December 2021
Judge: Abadee DCJ

Background

The appellant had been sentenced by the Penrith Local Court on 7 October 2021 to an aggregate term of 5 years' imprisonment, commencing 25 May 2021, with a non-parole period of 2 years, for a collection of offences occurring across three separate dates in 2019 and 2020. The offences included common assault, stalking and intimidation, affray, property damage, larceny, assaulting and resisting police officers, possessing a knife in a public place, and two counts of failing to appear on bail.

The offending on 10 August 2019 arose from an incident at the St Clair Shopping Centre, where the appellant became agitated in a retail store, threatened and assaulted customers and a security guard, damaged property, and then spat on and resisted police during his arrest. The offending on 6 October 2020 involved separate incidents at Nepean Hospital and the Panthers club in Penrith, with different victims at each location. Two further charges arose from the appellant's failure to appear at court on 16 November 2020.

The appellant challenged the severity of the aggregate sentence imposed by the Local Court, arguing that the indicative sentences for the August 2019 offences in particular were excessive.

  • Whether the indicative sentences set by the Local Court for the individual offences were appropriate, particularly for the August 2019 offending
  • Whether the principle of totality had been properly applied across a spate of offences involving different victims, different dates, and different locations
  • Whether the aggregate sentence of 5 years' imprisonment was manifestly excessive in all the circumstances, including the appellant's background, culpability, and prospects of rehabilitation

Decision

Abadee DCJ found there was limited but real scope to reduce several of the indicative sentences for the August 2019 offences. Three of those offences (property damage and larceny charges) were re-sentenced to Community Corrections Orders of 12 months each, and several of the remaining indicative terms for that day's offending were reduced from 9 months to 3 months. The indicative sentences for the October 2020 offences and the failure-to-appear offences were left unchanged.

On the question of culpability, the Court acknowledged the appellant's submission that he had been affected by drug use, depression, family breakdown, and possible undiagnosed mental disorders. However, the Court found that no independent or persuasive evidence established any mental impairment, and that mere exposure to family breakdown could not in itself constitute a recognised mitigating factor. Intoxication, while relevant to the assessment of culpability, provided no mitigation.

On totality, the Court accepted that some concurrency was appropriate for offences arising from the same episode on each date, but found that some accumulation remained necessary to reflect the overall criminality, particularly given the involvement of different victims and offences across the October 2020 incidents at distinct locations. The Court was mindful that the final sentence should not be crushing.

Having varied several indicative sentences and applying the totality principle, the Court reduced the aggregate term from 5 years to 4 years, retaining the same ratio of non-parole period to head sentence as the Local Court had applied.

Orders Made

  • Aggregate term of imprisonment varied to 4 years, commencing 25 May 2021 and ending 24 May 2025
  • Non-parole period of 1 year, 6 months and 16 days, expiring 10 December 2022
  • Three indicative sentences for August 2019 offences (property damage and larceny) replaced with Community Corrections Orders of 12 months each
  • Several other indicative sentences for August 2019 offences reduced from 9 months to 3 months
  • Indicative sentences for October 2020 offences and failure-to-appear offences remained at 9 months and 3 months respectively

Key Takeaways

  • The District Court confirmed that intoxication at the time of offending does not provide mitigation, though it remains relevant to assessing the degree of the offender's culpability.
  • Mere exposure to family breakdown, without more, does not constitute a recognised mitigating factor in sentencing; persuasive and independent evidence of resulting mental impairment is required before such background can reduce culpability.
  • Under the totality principle, some concurrency is appropriate where multiple offences form part of the same episode or continuum, but accumulation of sentences remains necessary where offences involve different victims, different locations, and distinct criminal acts.
  • Where offences occur in distinct episodes on different dates and at different places, the case for concurrency is weaker than where all conduct forms a single, continuous episode.
  • In a severity appeal, the appellate court may vary individual indicative sentences and substitute non-custodial orders for less serious offences within an aggregate sentence, without disturbing the structure of the non-parole period ratio adopted below.

Legislation and Cases Referenced

Legislation
- Bail Act 2013 (NSW) s 79(1)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5, 21A
- Crimes Act 1900 (NSW) ss 58, 61, 93C, 117, 195
- Summary Offences Act 1988 (NSW) s 11C

Cases
- Bugmy v The Queen (2013) 249 CLR 571
- Park v The Queen [2021] HCA 37; (2021) 95 ALJR 968