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District Court 17 June 2022

R v Neal (No. 2)

[2022] NSWDC 215

DrugsFraud & dishonestyTheft & property
SENTENCE ROBBERY VARIOUS BREAK AND ENTER OFFENCES SUPPLY PROHIBITED DRUGS .

Citation: R v Neal (No. 2) [2022] NSWDC 215
Court: District Court of New South Wales
Date: 17 June 2022
Judge: Mahony SC DCJ

Background

The offender, born in November 1983, appeared for sentencing on five offences spanning September to October 2018. The offences included a robbery at a hair and day spa in Penrith, two aggravated break and enter offences (one with a co-offender at a running apparel store in the Blue Mountains), a break and enter at a food shop, and the supply of 27.7 grams of methylamphetamine. Related offences dealt with by certificate included two counts of driving whilst disqualified, being carried in a stolen vehicle, and goods in custody.

The offender was found guilty after a judge-alone trial on four counts and pleaded guilty (late, on the day set for trial) to the fifth. At the time of the offending, he was on conditional liberty under three separate good behaviour bonds. He had spent a total of 888 days in pre-sentence custody by the sentencing date.

The matter was the companion sentencing decision to the verdict judgment delivered on 18 February 2022 (R v Neal [2022] NSWDC 23), which set out the findings of fact from trial. Those findings were incorporated into the sentencing remarks.

  • What aggregate sentence was appropriate across the five index offences, having regard to the totality principle and the standard non-parole periods applicable to the aggravated break and enter counts?
  • How should pre-sentence custody (spanning two separate periods in custody) be accounted for in fixing the commencement date of the aggregate sentence?
  • What discount, if any, applied to the late guilty plea in respect of the sequence 6 offence (aggravated break and enter with co-offender McCutchen)?
  • What sentences were appropriate for the related certificate offences, including the two driving whilst disqualified counts and the goods in custody offence?
  • How did the offender's personal circumstances, including any background factors relevant under Bugmy v R, bear on the exercise of the sentencing discretion?

Decision

The court imposed an aggregate sentence of five years and six months imprisonment under section 53A of the Crimes (Sentencing Procedure) Act, with a non-parole period of three years. The non-parole period was backdated to 11 January 2020 to reflect the pre-sentence custody the offender had served. The balance of term runs until 10 July 2025.

On the late guilty plea for sequence 6 (aggravated break and enter at the Blue Mountains running store), the court applied a 10% utilitarian discount, which was not in dispute. The four counts on the indictment, on which the offender was found guilty after trial, attracted no discount.

For the certificate offences, the court addressed each separately. The two driving whilst disqualified offences attracted fines of $250 and $500 respectively, along with disqualification periods of six and twelve months to operate consecutively from June and December 2022. The goods in custody offence attracted a fixed term of four months imprisonment, ordered to run concurrently with the aggregate sentence. The being-carried-in-a-stolen-conveyance offence was proved but no additional penalty was imposed, the court recording a conviction only under section 10A.

Orders Made

  • Conviction recorded for aggravated break and enter and commit serious indictable offence (sequence 6, guilty plea, s 112(2) Crimes Act 1900).
  • Conviction recorded for robbery (s 94(a) Crimes Act 1900), aggravated break and enter (s 112(2)), supply prohibited drug greater than indictable quantity (s 25(1) DMTA), and break and enter and steal (s 112(1)(a) Crimes Act 1900).
  • Aggregate sentence of five years and six months imprisonment, with a non-parole period of three years commencing 11 January 2020 and expiring 10 January 2023; balance of term expiring 10 July 2025.
  • Certificate offence (seq 7, being carried in conveyance): conviction without further penalty under s 10A.
  • Certificate offence (seq 8, drive whilst disqualified): convicted, fined $250, disqualified six months from 17 June 2022.
  • Certificate offence (seq 9, drive whilst disqualified): fined $500, disqualified twelve months from 17 December 2022.
  • Certificate offence (seq 10, goods in custody): fixed term of four months imprisonment, concurrent with the aggregate sentence.

Key Takeaways

  • An aggregate sentencing approach under section 53A of the Crimes (Sentencing Procedure) Act was applied across five index offences spanning robbery, aggravated break and enter, drug supply, and property offending, resulting in a total term of five years and six months with a three-year non-parole period.
  • A late guilty plea entered on the day of trial attracted only a 10% utilitarian discount, consistent with the established principle that the utilitarian value of a plea diminishes significantly when entered at the last available opportunity.
  • Pre-sentence custody served across two separate periods was accounted for by backdating the commencement of the aggregate sentence rather than by notionally reducing the head sentence, reflecting standard practice in New South Wales sentencing.
  • Where an offender commits serious offences while on conditional liberty under multiple good behaviour bonds, that circumstance operates as an aggravating factor in the sentencing exercise.
  • Certificate offences under section 166 of the Crimes (Sentencing Procedure) Act were dealt with individually, with the court applying a range of disposals from conviction without penalty (s 10A) through to fines, licence disqualification periods, and a concurrent fixed term of imprisonment.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 94(a), 112(1)(a), 112(2), 154A(1)(b), 527C(1)(c)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Road Transport Act 2013 (NSW), s 54(1)(a)
- Drug Court Act 1998 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 53A, 166

Cases:
- Bugmy v R (2013) 249 CLR 571; [2013] HCA 37
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 88
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Biddle v R [2017] NSWCCA 128
- Hoskins v R [2021] NSWCCA 169
- Lloyd v R [2022] NSWCCA 18
- Mandranis v R [2021] NSWCCA 97
- Palijan v R [2010] NSWCCA 142
- R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267
- R v Huynh [2005] NSWCCA 220
- R v Merrin [2007] NSWCCA 255; (2007) 174 A Crim R 100
- R v Neal [2022] NSWDC 23
- R v Van Ryn [2016] NSWCCA 1
- Wany v DPP (2020) 103 NSWLR 620; [2020] NSWCA 318
- JMS v R [2010] NSWCCA 229