Citation: R v Barker [2022] NSWDC 259
Court: District Court of New South Wales
Date: 25 February 2022
Judge(s): King SC DCJ
Background
The offender appeared for sentencing on five offences committed across three separate days in November 2020. The offending included a planned commercial burglary at a Hurstville restaurant, an unprovoked assault on a man in a public street, a domestic violence-related common assault, a police pursuit, and dangerous driving through Redfern streets.
The restaurant break-in involved reconnaissance earlier in the day, a forced entry at night, an attempt to crack a wall safe using a sledgehammer, and the theft of personal items. The street assault caused the victim to lose consciousness and sustain visible facial injuries. The driving offences arose after the offender fled police during the domestic violence incident, reversing into a police vehicle and driving dangerously through Redfern before being stopped.
The offender pleaded guilty to all five charges at the Central Local Court on 2 November 2021 and was entitled to a 25 percent utilitarian discount on each offence.
Legal Issues
- What sentences were appropriate for each individual offence, taking into account objective seriousness, the standard non-parole period (where applicable), and the guilty plea discounts?
- To what extent did the principles in Bugmy v R and R v Fernando apply, given the offender's background of deprivation, substance abuse, and institutionalisation?
- How should the aggregate sentence be structured to reflect totality across three separate occasions of offending involving different victims and different types of offences?
- What non-parole period was appropriate, given the need for supervision and rehabilitation support upon release?
Decision
King SC DCJ assessed each offence individually before constructing an aggregate sentence. The aggravated break, enter and steal attracted an indicative sentence of three years and six months, reflecting pre-planning, the use of a sledgehammer, and the attempt to defeat identification by wiping surfaces. The assault occasioning actual bodily harm received an indicative sentence of 18 months, and the police pursuit offence also attracted an indicative term of 18 months. The driving dangerously offence received an indicative term of five months.
The court considered the offender's background at length. His Honour acknowledged a difficult upbringing, significant exposure to drug use from an early age, a long history of methamphetamine dependence, and an extensive criminal record that had led to substantial periods of incarceration. These factors were accepted as relevant under the Bugmy principle, which recognises that the effects of profound childhood deprivation do not diminish with repeated offending or imprisonment. The Fernando principles, directed at the sentencing of Aboriginal offenders with similar backgrounds, were also considered, though the decision is not explicit that the offender was Aboriginal; the judgment addressed both sets of principles in context.
The court found that the offender demonstrated some remorse and that there were prospects of rehabilitation, though these were tempered by the assessment that, without sustained intervention for his drug dependency, reoffending remained likely. The combination of ongoing drug abuse and institutionalisation reduced the weight ordinarily given to general deterrence without eliminating it.
In constructing the aggregate sentence, the court took account of the principle of totality and the need for some accumulation to properly reflect that the offending occurred on three separate occasions, involved distinct victims, and spanned different categories of criminal conduct. The court also backdated the sentence by 218 days to account for time already spent in custody.
Orders Made
- Aggregate sentence of six years' imprisonment, commencing 22 July 2021
- Non-parole period of four years, with the offender first eligible for parole on 21 July 2025
- Total sentence expiring 21 July 2027
- Automatic three-year licence disqualification for the drive in a manner dangerous offence
- Compensation order in favour of CGU Insurance in the amount of $2,511.77 pursuant to s 97(1) of the Victims Rights and Support Act 2013
Key Takeaways
- The District Court applied the Bugmy principle to hold that the mitigating force of childhood deprivation and its consequences, including entrenched drug dependency, is not diminished by the fact that an offender has a lengthy criminal history and has spent substantial periods in custody.
- Where an offender's drug dependency is assessed as the likely driver of future reoffending, a sentencing court may structure a non-parole period to ensure a meaningful period of supervised parole remains available to support rehabilitation and community reintegration.
- Aggregate sentencing for spree offending across multiple victims, multiple dates, and multiple categories of offence requires some degree of accumulation, even after the totality principle is applied, to avoid sentences that fail to reflect the individual gravity of each episode.
- A 25 percent utilitarian discount for guilty pleas is available at the District Court level where pleas were entered at the Local Court committal stage, with the discount applied individually to each offence.
- Institutionalisation, meaning a pattern of repeated imprisonment that has diminished an offender's capacity to function outside the custodial environment, is a recognised factor that informs both the structure of the sentence and the weight attributed to the prospect of rehabilitation.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 59, 61, 112(2), 51B(1)
- Road Transport Act 2013 (NSW), s 117(2)
- Victims Rights and Support Act 2013 (NSW), s 97(1)
Cases:
- Bugmy v R [2013] HCA 37
- R v Fernando [2002] NSWCCA 28
- Callaghan v R [2006] NSWCCA 58
- 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