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District Court 25 March 2021

R v Hazelwood

[2021] NSWDC 88

Theft & property
AGGREGATE SENTENCE

Citation: R v Hazelwood [2021] NSWDC 88
Court: District Court of New South Wales
Date: 25 March 2021
Judge(s): Mahony SC DCJ

Background

The offender pleaded guilty to seven offences of break, enter and steal (or break and enter with intent) committed in New South Wales between May 2006 and April 2015. The offences involved repeated late-night forced entries into hotels, clubs, and other licensed venues, primarily targeting poker machines and cigarette vending machines. A further seven related offences were placed on three Forms 1 (that is, admitted offences taken into account on sentencing but not separately punished).

The sentencing was significantly delayed because the offender had been serving a separate Queensland sentence. In November 2019, he had been sentenced in Queensland to seven years' imprisonment for 65 similar offences, with that sentence backdated to commence on 29 August 2017. He became eligible for parole in Queensland in December 2019 but was not released, apparently because a warrant had issued for his extradition to New South Wales. He was extradited in April 2020 and remained in custody in NSW from that point.

The central sentencing challenge was how to impose a just NSW sentence that, when combined with the existing Queensland sentence, produced a result consistent with totality principles (the requirement that the overall sentence reflect the total criminality without being crushing or disproportionate).

  • How the NSW court should structure an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 where the offender was already serving a substantial interstate sentence for analogous offending.
  • Whether, and to what extent, the delay in bringing the NSW matters to sentence (while the offender served the Queensland sentence) should reduce the NSW penalty.
  • How totality principles applied across two separate sentencing jurisdictions to produce an overall sentence that was neither excessive nor insufficient for the combined criminality.
  • The weight to be given to the Forms 1 offences, the offender's guilty pleas, and any other mitigating factors.

Decision

The court imposed an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999, structuring the NSW non-parole period to commence on 29 August 2019 (backdated to partway through the Queensland sentence) and to run through to 28 August 2022. The balance of term runs from 29 August 2022 to 28 August 2025. The aggregate NSW sentence therefore totals six years, comprising a three-year non-parole period and a three-year balance of term.

The court considered totality carefully, noting that the combined effect of the Queensland sentence (seven years, commencing 29 August 2017) and the NSW sentence produced an overall non-parole period of five years and a total custodial term of eight years. Mahony SC DCJ found this was the shortest period appropriate given the number of offences and the cumulative criminality across both states.

The delay between the NSW offending and the sentencing hearing was a relevant consideration. The court acknowledged the principles in cases such as R v Todd and Mill v The Queen, which recognise that prolonged delays before sentence can mitigate the penalty, particularly where the offender has been unable to clear the outstanding charges while in custody elsewhere. The backdating of the non-parole period reflected this consideration in practical terms.

The court also noted that upon any release to parole, the offender was likely to be taken into immigration custody pending a ministerial decision on deportation to New Zealand, and that parole would not be automatic.

Orders Made

  • Conviction recorded for all seven index offences (Sequences 2, 19, 20, 21, 24, 25, and 35) under ss 112(1) and 113(1) of the Crimes Act 1900.
  • Aggregate sentence imposed under s 53A of the Crimes (Sentencing Procedure) Act 1999.
  • Non-parole period of 3 years, commencing 29 August 2019 and terminating 28 August 2022.
  • Balance of term of 3 years, from 29 August 2022 to 28 August 2025.
  • Matters on Forms 1A, 1B, and 1C certified as taken into account.

Key Takeaways

  • Where an offender is sentenced in NSW after already serving a substantial interstate sentence for similar offending, totality principles require the court to structure the NSW sentence so that the combined result is proportionate to the total criminality across both jurisdictions.
  • The District Court applied established authority, including Mill v The Queen and R v Todd, recognising that significant delay in bringing charges to sentence, particularly delay caused by the offender's inability to deal with outstanding matters while in interstate custody, is a mitigating consideration that can be reflected in backdating or in reducing the overall NSW term.
  • An aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 is a practical mechanism for capturing a large number of related offences in a single sentencing exercise, with Forms 1 matters acknowledged but not separately punished.
  • Backdating the NSW non-parole period to a point within the currency of the interstate sentence was the mechanism the court used here to give practical effect to totality, rather than simply running the NSW sentence on from the expiry of the Queensland term.
  • Release to parole remained discretionary rather than automatic, and the court noted the prospect of immigration proceedings upon any release.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 112(1) and 113(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A

Cases
- Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1
- Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
- RO v R [2019] NSWCCA 183
- R v Blanco [1999] NSWCCA 121
- R v Harris (2007) 171 A Crim R 267; [2007] NSWCCA 130
- R v Merrin [2007] NSWCCA 255
- R v Ponfield (1999) 48 NSWLR 327; [1999] NSWCCA 435
- R v Todd (1982) 2 NSWLR 517
- Watts v R [2007] NSWCCA 153