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District Court 19 September 2022

R v Carroll

[2022] NSWDC 419

Assault & violenceTheft & propertyDomestic & family violencePublic order & justice offences
CRIMINAL LAW SEVERITY APPEAL FROM LOCAL COURT DOMESTIC VIOLENCE OFFENCES BREAK AND ENTERING OFFENCE

Citation: R v Carroll [2022] NSWDC 419
Court: District Court of New South Wales
Date: 19 September 2022
Judge(s): Abadee DCJ

Background

The appellant pleaded guilty in Gosford Local Court to a series of offences committed in June and July 2022. The offences included two contraventions of an apprehended domestic violence order (ADVO), resisting a police officer in the execution of duty, and breaking and entering a dwelling house while stealing property. The Local Court sentenced the appellant on 18 August 2022 to a combination of terms of full-time imprisonment and a community corrections order.

The appellant was 40 years old at the time of offending. He had a lengthy prior criminal history that included offences of dishonesty and personal violence. At the time all relevant offences were committed, he was subject to an Intensive Correction Order, and on the date of the July offences he was also on bail.

The appellant lodged a severity appeal in the District Court on or about 19 August 2022, challenging the individual sentences imposed for three of the four offences. His legal representative did not press the appeal in relation to the resisting police offence.

  • Whether the individual sentences imposed by the Magistrate for the ADVO contraventions and the break-and-enter offence were manifestly excessive
  • Whether the appellant's subjective circumstances, including his use of a prosthetic leg and the guilty pleas entered, warranted a reduction in the sentences
  • Whether special circumstances existed justifying a longer-than-usual parole period relative to the non-parole period
  • How the individual sentences should be structured (concurrent versus accumulated) given the timing and nature of the offences and the involvement of different victims

Decision

Abadee DCJ assessed each offence individually before considering the overall sentencing structure. The June ADVO contravention was placed at the lower end of the range: the appellant had been found hiding in the victim's home in breach of the ADVO's no-contact condition, but there was no evidence of actual or imminent violence. The July ADVO contravention was treated as more serious, falling in the mid-range, given that the victim was found distressed and claimed injuries, even though the appellant maintained he attended because the victim had threatened self-harm.

The break-and-enter offence, though assessed at the lower end of its range given the limited monetary value of stolen property, was described by the court as inherently grave. His Honour emphasised that the maximum penalty on indictment of 14 years' imprisonment signals the seriousness of such an offence, characterising it as among the most serious matters tried in the Local Court.

The court accepted that some accumulation of sentences was necessary to reflect that the offences occurred on different days, involved different victims, and were of different kinds. While the appellant's legal representative pointed to mitigating factors, including the prosthetic leg making custody more difficult and some features of the subjective case, his Honour found these did not materially alter the overall outcome. The court accepted the existence of special circumstances, noting that a longer period on parole would better support whatever rehabilitation prospects existed, despite expressing significant reservations about those prospects.

The court found that the overall effective term of imprisonment imposed by the Magistrate was appropriate, but the non-parole period required adjustment. The individual sentences were set aside and replaced with an aggregate sentence. The appeal against the resisting police offence was dismissed.

Orders Made

  • The severity appeal against offence H88134660/2 (resisting a police officer) is dismissed
  • For the remaining offences (H91565388/1, H88134660/1, and H88134660/3), the individual sentences are set aside
  • An aggregate sentence of 1 year, 9 months and 14 days is imposed, commencing 29 June 2022 and expiring 11 April 2024
  • Non-parole period of 1 year and 2 months, expiring 28 August 2023
  • The sentence is backdated to account for 4 days of prior custody

Key Takeaways

  • The District Court confirmed that being subject to an Intensive Correction Order and bail at the time of offending constitutes significant aggravating circumstances under the sentencing framework.
  • A conviction for break and enter under s 112(1)(a) of the Crimes Act 1900, even when assessed at the lower end of the range and tried summarily, carries inherent gravity that must be reflected in the sentence given the maximum penalty of 14 years on indictment.
  • Where multiple offences involve different victims and occur on different dates, some accumulation of sentences is appropriate even where a degree of concurrency is also warranted.
  • Special circumstances justifying a longer parole period relative to the non-parole period can be found even where the court expresses reservations about the offender's rehabilitation prospects, on the basis that extended supervision may enhance those prospects.
  • Subjective mitigating factors, such as physical disability making custody more burdensome, may be accepted by the court while nonetheless having limited effect on the overall sentencing outcome where the objective seriousness of offending and aggravating circumstances are substantial.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) ss 58, 112
- Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 14
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 3A

Cases:
- Bugmy v The Queen (2013) 249 CLR 571
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1
- R v Henry (1999) 46 NSWLR 346