Citation: R v Olson [2022] NSWDC 449
Court: District Court of NSW
Date: 30 September 2022
Judge(s): Abadee DCJ
Background
The appellant pleaded guilty in the Gosford Local Court to four offences arising from separate incidents in August and October 2021: stalking and intimidating a domestic victim with intent to cause fear of physical harm, dealing with proceeds of crime under $100,000, breaking and entering a dwelling to steal, and malicious damage to property. The Local Court imposed an aggregate sentence of 18 months' imprisonment with a non-parole period of 12 months. A further four offences from 5 October 2021 attracted section 10A convictions (meaning convictions were recorded but no additional penalty was imposed), and those were not challenged on appeal.
The appellant, an Indigenous woman aged 42 to 43 at the time of the offending, had a deeply disadvantaged background and was subject to an Intensive Correction Order (ICO) at the time she committed these offences. She appealed to the District Court on the ground that the aggregate sentence was excessive.
The offending spanned multiple incidents and victims. The August 2021 conduct involved threatening a housemate, removing property and money from the victim's home, and taking the victim's phones to prevent her contacting police. The October 2021 conduct included driving a stolen vehicle with stolen number plates, and breaking into a stranger's home while in a drug-induced state, causing damage and stealing jewellery.
Legal Issues
- Whether the aggregate sentence of 18 months was manifestly excessive having regard to all of the offending and the appellant's subjective circumstances.
- Whether any of the indicative sentences for individual offences were excessive.
- Whether the Local Court's jurisdictional limit on individual sentences should serve as a guidepost to the appropriate sentence.
- Whether the non-parole period should be reduced further than the Magistrate had already reduced it, based on a finding of special circumstances.
- Whether the commencement date of the sentence should be adjusted to account for the period the appellant had spent in custody.
Decision
Abadee DCJ dismissed the severity appeal, finding that the aggregate sentence of 18 months' imprisonment was no more than appropriate in the circumstances. His Honour emphasised that the correct focus on a severity appeal involving multiple offences is the aggregate sentence, not the individual indicative sentences. While the parties disputed the appropriate indicative terms, those disputes did not alter the overall conclusion about the aggregate sentence.
His Honour addressed the significance of the Local Court's sentencing jurisdiction directly. The maximum custodial term available in the Local Court (generally two years for a single offence) is not a guide to what constitutes an appropriate sentence. His Honour noted that in a sufficiently serious case, the jurisdictional maximum could be reached even after an early guilty plea, and that the offences before the District Court carried far higher maximum penalties.
The court accepted that the appellant's subjective case attracted some weight. Her Indigenous background, tragic upbringing, history of disadvantage, and mental health issues were relevant mitigating factors, consistent with the principles in Bugmy v R (2013) 249 CLR 571. Nevertheless, her offending occurred while she was on an ICO, involved multiple victims and multiple incidents, and the aggregate sentence had already incorporated a substantial degree of concurrency that might not have been afforded if the matters had been sentenced in the District Court originally.
On special circumstances, Abadee DCJ declined to reduce the non-parole period below the ratio fixed by the Magistrate (approximately 66.7% of the head sentence). While a longer period on parole could theoretically assist rehabilitation, the court treated the appellant's stated intentions with caution given her prior history. The commencement date was varied to 6 April 2022 to reflect the period she had already spent in custody.
Orders Made
- The aggregate sentence of 18 months' imprisonment is confirmed.
- The commencement date is varied to 6 April 2022, with the sentence expiring on 5 October 2023.
- The non-parole period of 12 months is confirmed, expiring on 5 April 2023, after which the appellant is eligible for release on parole.
- The severity appeal is otherwise dismissed.
Key Takeaways
- The District Court confirmed that on a severity appeal from an aggregate sentence, the proper focus is the aggregate sentence as a whole, not the individual indicative sentences attached to each offence.
- The Local Court's jurisdictional sentencing limit is not a guidepost to what constitutes an appropriate sentence. A sentence at or near the jurisdictional maximum may still be warranted in a serious case, even where a guilty plea has been entered.
- Offending committed while subject to an Intensive Correction Order was treated as a significant aggravating factor, weighing against a reduction in the aggregate sentence.
- Bugmy principles regarding the weight given to a background of deprivation and disadvantage for Indigenous offenders were applied, though those factors did not outweigh the seriousness of the offending in this instance.
- In dismissing the appeal, the court observed that the aggregate sentence already reflected a generous degree of concurrency that might not have been applied had the matters been sentenced in the District Court at first instance, given the different offences, dates, and multiple victims involved.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 112 (break and enter), 193C (proceeds of crime), 195 (destroy or damage property)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 4A, 4B, 13(1) (stalk or intimidate with intent to cause fear of physical harm)
Cases:
- Bugmy v R (2013) 249 CLR 571 (High Court principles on the relevance of deprived background to sentencing)
- R v Henry (1999) 46 NSWLR 346 (principles applicable to sentencing for multiple offences)