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District Court 25 August 2021

R v James

[2021] NSWDC 746

Assault & violenceTheft & propertyPublic order & justice offences

Citation: R v James [2021] NSWDC 746
Court: District Court of New South Wales
Date: 25 August 2021
Judge: M L Williams SC DCJ

Background

The offender, a 44-year-old man, pleaded guilty to one count of aggravated break and enter and commit a serious indictable offence, namely intimidation in company, under s 112(2) of the Crimes Act 1900. The offence carries a maximum penalty of 20 years imprisonment and a standard non-parole period of five years. A Form 1 offence of intimidation under the Crimes (Domestic and Personal) Violence Act 2007 was also taken into account on sentencing.

The events arose from an attempt by the offender and two co-offenders to locate a person named Alyssa Sagaris, who they believed could lead them to a debtor named Karn Kennedy. On 14 May 2020, the three drove from Grafton to Coffs Harbour and entered a residential unit complex. In the course of searching for Sagaris, they banged on multiple doors. The force of the knocking broke open the door of a unit occupied by an unrelated couple, Samantha Brown and Daniel O'Dwyer.

Once inside, one co-offender (Jack Brown) produced an extendable baton and threatened O'Dwyer, demanding to know Sagaris's whereabouts. The offender did not foresee that Brown would carry a baton, but became aware of it upon entering the unit and remained inside to assist if needed. It was accepted that the offender himself said nothing to the occupants. The three then left and searched the building's letterboxes for mail addressed to Sagaris.

  • Whether a term of full-time imprisonment was warranted and, if so, its appropriate length after accounting for the guilty plea discount, time already served in custody, and time spent in quasi custody at a residential rehabilitation centre.
  • How the offender's sentence should be calibrated relative to that of co-offender Lucky Anthony, who had already been sentenced.
  • What weight should be given to the offender's subjective circumstances, including his Aboriginal background, history of drug addiction, mental illness, and dysfunctional upbringing, in accordance with Bugmy v The Queen (2013) 249 CLR 571.
  • Whether the sentence should be served as a full-time custodial term or by way of an intensive correction order (ICO).

Decision

The District Court accepted that the s 5 threshold for imprisonment had been crossed. The starting point adopted was the same as that used by Priestley DCJ when sentencing co-offender Lucky Anthony, namely two and a half years before discount. Although Anthony received a 25% discount for her guilty plea, the offender received only a 10% discount in his case. After applying that discount and accounting for the nine months and nine days already served in pre-sentence custody, the court arrived at an 18-month term of imprisonment.

The court accepted that the period the offender spent at a residential rehabilitation centre qualified as quasi custody, which was factored into the sentence in accordance with R v Pullen [2018] NSWCCA 264 and Mandranis v The Queen [2021] NSWCCA 97. The court took into account the offender's lengthy 16-page criminal history as an aggravating factor, but balanced this against genuine mitigating circumstances, including his guilty plea, expressed remorse, steps toward rehabilitation, mental health treatment, and the relevance of his Aboriginal background and deprived upbringing under the principles in Bugmy.

The court found no evidence that the offender currently posed a risk to community safety. Weighing the purposes of sentencing, including rehabilitation, the court directed that the 18-month sentence be served by way of an intensive correction order rather than full-time custody. The victim impact statement from Samantha Brown, describing the significant and ongoing effects of the offence, was taken into account in accordance with R v Thomas [2007] NSWCCA 269.

A separate charge of possessing a prohibited drug (2 grams of cannabis, found at arrest) was dealt with by way of a s 166 Certificate. The offender was convicted of that offence under s 10A of the Crimes (Sentencing Procedure) Act 1999, with no further penalty imposed.

Orders Made

  • The offender was convicted of aggravated break and enter and commit a serious indictable offence.
  • An 18-month sentence of imprisonment was imposed, taking into account the Form 1 matter and the 10% guilty plea discount.
  • The sentence was directed to be served by way of an intensive correction order (ICO) pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999, commencing 25 August 2021.
  • Standard ICO conditions applied: no further offending; supervision and compliance with all reasonable directions from Community Corrective Services.
  • Additional conditions imposed: abstain from alcohol and illicit drugs; undertake a mental health treatment plan as directed by Community Corrections or prescribed by a medical practitioner; report to the Grafton office of Community Corrective Services by 5pm on 1 September 2021.
  • For the s 166 Certificate drug possession matter: convicted under s 10A of the Crimes (Sentencing Procedure) Act 1999, no further penalty.

Key Takeaways

  • The District Court treated the sentence imposed on a co-offender by another judge as a relevant benchmark, then adjusted the outcome to reflect the offender's different guilty plea discount and individual circumstances, demonstrating the role of co-offender parity in the sentencing exercise.
  • Time spent in a residential rehabilitation centre can qualify as quasi custody, reducing the effective length of any sentence imposed, provided the conditions are sufficiently restrictive, consistent with R v Pullen [2018] NSWCCA 264 and Mandranis v The Queen [2021] NSWCCA 97.
  • Under the principles confirmed in Bugmy v The Queen (2013) 249 CLR 571, an offender's Aboriginal background and history of deprivation remain relevant to the assessment of moral culpability, even where the offender has a substantial prior criminal history.
  • An intensive correction order remained available as the sentencing disposition even where the s 5 imprisonment threshold was crossed and the offender had multiple prior custodial sentences, provided the court was satisfied there was no current risk to community safety.
  • Absence of evidence that an offender poses a present risk to community safety is a material factor in determining whether a sentence should be served in custody or under supervised community-based conditions.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(2)
- Crimes (Domestic and Personal) Violence Act 2007 (NSW), s 13(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 7(1), 10A, 66, 166
- Drug Misuse and Trafficking Act 1985 (NSW), s 10(1)

Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- Bugmy v The Queen (2013) 249 CLR 571
- Mandranis v The Queen [2021] NSWCCA 97
- R v Millwood [2012] NSWCCA 2
- R v Pullen [2018] NSWCCA 264
- R v Thomas [2007] NSWCCA 269