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District Court 1 August 2022

R v Hrncic

[2022] NSWDC 455

Assault & violenceDrugs

Citation: R v Hrncic [2022] NSWDC 455
Court: District Court of New South Wales
Date: 1 August 2022
Judge: Bennett SC DCJ

Background

The offender appeared for sentence proceedings following guilty pleas entered in the Local Court on 19 July 2021. He faced three principal charges: reckless wounding in company, supply of cocaine, and supply of MDMA. The wounding occurred on 18 March 2020 at Hunter's Hill, where the offender wounded the victim while in company with another person.

The two drug supply offences related to conduct between 1 March and 27 March 2020 in Sydney. Both the cocaine and MDMA quantities fell above the indictable threshold but below the commercial quantity under the Drug Misuse and Trafficking Act 1985.

The offender was arrested on 26 March 2020 and spent 24 hours in custody before being released on bail. His bail conditions, particularly between 27 March and 30 June 2020, included a curfew, daily reporting requirements, passport surrender, and a $10,000 cash surety. After 30 June 2020, the curfew was lifted and conditions became less restrictive.

  • Whether restrictive bail conditions between arrest and sentence amounted to quasi-custody, and how that should affect the sentence
  • What discount applied for early guilty pleas entered in the Local Court
  • How multiple offences, including Form 1 matters and related s 166 offences, should be reflected in an aggregate sentence
  • Whether special circumstances existed to justify a non-parole period shorter than the standard ratio
  • What orders were appropriate in respect of cash proceeds of crime

Decision

Guilty plea discount. Because the offender pleaded guilty in the Local Court, Part 3 Division 1A of the Crimes (Sentencing Procedure) Act 1999 applied. The court assessed a 25% utilitarian discount for the three indictable charges. The same 25% discount applied to the two related summary offences dealt with under s 166 of the Criminal Procedure Act 1986, consistent with the principles in R v Borkowski [2006] NSWCCA 102. The court ultimately applied a total discount of 50% to each offence after accounting for additional mitigating factors.

Quasi-custody. The court accepted that the curfew conditions imposed between 27 March and 30 June 2020 were sufficiently restrictive to constrain the offender's liberty, though the court stopped short of treating them as full quasi-custody. Drawing on R v Quinlan [2021] NSWCCA 284, the court acknowledged that this period of constraint warranted some allowance in the overall sentencing assessment.

Form 1 and related offences. Two proceeds of crime offences (totalling $9,530) were placed on Form 1 in relation to the cocaine supply charge. Two further offences, possession of cannabis and possession of human growth hormone (Somatropin), were dealt with as related offences under s 166. For both of those offences, the offender was convicted but no penalty was imposed under s 10A of the Crimes (Sentencing Procedure) Act 1999.

Aggregate sentence and special circumstances. The court set individual indicative sentences before arriving at an aggregate sentence of 3 years and 6 months, with a non-parole period of 2 years commencing 31 July 2022. Special circumstances were found, producing a non-parole period shorter than the standard ratio. The court identified the offender's youth, the fact this was his first period of custody, the added hardship of custody in his particular circumstances, and his strong rehabilitation prospects as the basis for that finding.

Orders Made

  • Aggregate sentence of 3 years and 6 months imposed, with a non-parole period of 2 years commencing 31 July 2022 and expiring 30 July 2024; head sentence expiring 30 January 2026
  • Offender convicted of reckless wounding in company (indicative sentence: non-parole period of 1 year 6 months, head sentence of 3 years)
  • Offender convicted of supply cocaine (indicative sentence: 3 years imprisonment)
  • Offender convicted of supply MDMA (indicative sentence: 2 years 6 months imprisonment)
  • Offender convicted of possessing cannabis and possessing human growth hormone; no penalty imposed under s 10A in each case
  • Cash of $780 and $8,750 (total $9,530) forfeited to the State under s 18(3) of the Confiscation of the Proceeds of Crime Act 1989, with authority to dispose of that property forthwith under s 19(3)(a)

Key Takeaways

  • The District Court confirmed that a 25% utilitarian discount applied to guilty pleas entered in the Local Court on both indictable and related summary charges, consistent with R v Borkowski.
  • Under R v Quinlan, bail conditions need not reach the threshold of full quasi-custody to be taken into account at sentencing; conditions that meaningfully constrain an offender's liberty may still reduce the effective punishment imposed.
  • Form 1 offences are brought to account in sentencing for the principal charge to which they relate, rather than being sentenced separately, and their inclusion may affect the overall weight of that sentence.
  • Special circumstances justifying a reduced non-parole period to head sentence ratio are assessed on the individual facts, including the offender's age, first-time custody status, and rehabilitation prospects.
  • Where related summary offences are dealt with under s 166 of the Criminal Procedure Act 1986, the sentencing court retains the discretion to impose no penalty under s 10A even while recording a conviction.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 35(3), 193C(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 25D(2)(a), 53A, Part 3 Div 1A, Part 4 Div 1A
- Criminal Procedure Act 1986 (NSW), s 166
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(1)
- Summary Offences Act 1988 (NSW), s 11C(1)
- Poisons and Therapeutic Goods Act 1966 (NSW), s 16(1)
- Confiscation of the Proceeds of Crime Act 1989 (NSW), ss 18(3), 19(3)(a)

Cases
- R v Borkowski [2006] NSWCCA 102
- R v Quinlan [2021] NSWCCA 284
- Tiknius v R (2011) 221 A Crim R 365