Citation: R v Brown, Haines & Ingray [2022] NSWDC 130
Court: District Court of New South Wales
Date: 27 January 2022
Judge(s): King SC DCJ
Background
Three offenders, Tony Haines, Aaron Brown, and Wayne Ingray, were sentenced following jury convictions on multiple counts of serious property and violent offending committed across Sydney's northern and southern suburbs between late 2018 and early 2019. All three were on parole at the time of their offending. Haines was 29, Brown was 26, and Ingray was 23 years old when the offences were committed.
The offences included aggravated break and enter with occupants present, assault with intent to rob in company, stealing motor vehicles, and related offences. A fourth man, Ty Simms, had been sentenced separately by Norton SC DCJ, and a fifth, James Cavanagh, had been sentenced separately by Yehia SC DCJ. Ingray faced the broadest range of conduct: in addition to trial convictions, he had separately pleaded guilty to a further 20 offences and asked the court to take into account an additional ten offences on Form 1s, bringing his total to 38 offences.
The joint offending typically involved several individuals travelling late at night or in the early hours of the morning in stolen vehicles to residential areas, where they selected premises and committed or attempted to commit the charged offences.
Legal Issues
- Whether the offending was planned or opportunistic, and how that characterisation affected the sentencing assessment
- How the principle of joint criminal enterprise applied to differentiate, or not differentiate, the moral culpability of each participant
- Whether Ingray should be treated as the ringleader given the significantly greater volume of his offending and his involvement with additional co-offenders
- How parity should be achieved across the three offenders before the court, having regard to the sentences already imposed on Simms and Cavanagh
- The appropriate aggregate sentences, including the application of the totality principle and the finding of special circumstances
Decision
King SC DCJ characterised the offending not as opportunistic but as planned and organised. The court found that on each relevant occasion a group of likeminded individuals gathered, travelled in stolen vehicles to targeted areas, and spent hours assessing suitable premises before striking. The only truly opportunistic element was the final selection of specific targets. Cell tower records corroborated this inference.
On joint criminal enterprise, the court applied the principle that all participants in an agreed criminal enterprise bear equal guilt regardless of the precise role each played, following R v Hoschke. The court acknowledged that differentiation remains possible where, for example, one offender is clearly the ringleader. However, it declined to treat Ingray as a ringleader simply because he offended over a longer period, committed more offences, or participated with a wider range of co-offenders. The court characterised the conduct as a series of separate joint criminal enterprises, with no basis to distinguish the moral culpability of any participant on any individual offence.
The court assessed the subjective circumstances of each offender separately. For Ingray, the sheer volume and seriousness of the offending necessitated a significant degree of accumulation between indicative sentences. Special circumstances were found in Ingray's case, primarily because of the length of the sentence required, to allow for a longer parole period to assist with rehabilitation. No special circumstances were found for Haines or Brown, except to account for the time each had already spent in continuous custody.
The court took into account the sentences imposed on Simms and Cavanagh when assessing parity, treating those comparisons as relevant to all three offenders rather than solely to Ingray.
Orders Made
• Aggregate sentence of 11 and a half years with a non-parole period of eight years, commencing on 1 April 2019
• Non-parole period of eight years (reduced by seven months and 15 days from the statutory relationship to provide for three and a half years of parole)
• Schedule of Charges to be annexed to the decision
Key Takeaways
- The District Court held that residential break-and-enter offending is not rendered opportunistic merely because the final target was selected on the night; systematic late-night travel in stolen vehicles to scout and assess suitable premises constitutes planning and organisation.
- Under the joint criminal enterprise principle, all participants in an agreed crime bear equal guilt for each offence, and a court cannot differentiate moral culpability without a proper factual basis such as clear ringleader status.
- A greater total number of offences, a longer overall offending period, or participation with a wider circle of co-offenders does not, without more, elevate one participant to the status of ringleader within a series of separate joint enterprises.
- Parity considerations required the court to have regard to the indicative sentences already imposed on separately sentenced co-offenders, and the court treated those comparisons as relevant to all three offenders being sentenced, not only the one with shared offences.
- Where an aggregate sentence is lengthy due to the volume of serious offending, a finding of special circumstances to extend the parole period beyond the standard ratio may be warranted to support rehabilitation.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 97(1), 112(2), 113(2), 114(1)(d), 154A(1)(b), 154F, s 166
Cases:
- Bugmy v The Queen [2013] HCA 37
- Callaghan v R [2006] NSWCCA 58
- Pearce v The Queen (1998) 194 CLR 610
- R v Fernando [2002] NSWCCA 28
- R v Hoschke (2001) NSWCCA 317
- R v Huynh [2003] NSWCCA 239
- R v McVittie [2002] NSWCCA 344
- R v Millwood [2012] NSWCCA 2
- R v Moffatt (1990) 20 NSWLR 114