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District Court 6 October 2022

R v Williams

[2022] NSWDC 608

Theft & property

Citation: R v Williams [2022] NSWDC 608
Court: District Court of New South Wales
Date: 6 October 2022
Judge: Bennett SC DCJ

Background

The offender pleaded guilty to recklessly damaging property by fire, contrary to s 195(1)(b) of the Crimes Act 1900. In the early hours of 9 August 2021, he lit bales of cardboard stacked outside the rear roller door of an IGA supermarket in Annandale, causing a fire that engulfed the rear of the premises. The estimated total loss, including structural damage, lost stock, and business interruption, exceeded $1.3 million.

The fire created serious risks to life. A couple were asleep in an apartment directly above the store, with the fire blocking their only exit. The 23-weeks-pregnant occupant was unable to climb down from the roof unassisted and had to be rescued by the fire brigade. A firefighter was hospitalised for smoke inhalation assessment.

The offender was arrested the following day. He initially denied involvement in a police interview but was identified through CCTV footage and comparable clothing and bicycle found at his home. He had been on parole at the time of the offence, and that parole was subsequently revoked.

  • What sentence was appropriate for an offence of recklessly damaging property by fire, given the offender's guilty plea, criminal history, and personal circumstances including long-term drug dependency?
  • When should the sentence commence, given the offender had served a period in custody referable to a parole revocation before the head sentence began?
  • What discount applied for the early guilty plea entered in the Local Court?
  • Whether the offender met the criteria for referral to the Drug Court as an eligible convicted offender under the Drug Court Act 1998.

Decision

The District Court accepted that the offending was serious. The fire caused extensive property damage, endangered the lives of two residents (one heavily pregnant), and required emergency services intervention. The court took into account the offender's lengthy criminal history, his poor record on parole, his long-term drug dependency, and the fact that the offence occurred while he was subject to parole conditions.

On the commencement date of the sentence, the court applied the principles in Callaghan v R [2006] NSWCCA 58. Because the offender's parole had been revoked following the offence, time in custody was initially referable to that revocation rather than the present charge. The court exercised its discretion to backdate the sentence to 10 September 2021, a point during the parole balance period, finding it improbable that the offender would have obtained parole again in any event given his history of breaches.

A 25% discount was applied to the sentence in recognition of the utilitarian value of the guilty plea entered in the Local Court, consistent with s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999. After that reduction, the court imposed a non-parole period of two years and eight months and a total head sentence of four years.

The court then turned to the Drug Court Act 1998, identifying a duty under Part 2A to consider whether the offender was an eligible convicted offender for the purposes of compulsory drug treatment detention. The court concluded that the offender's circumstances, including his long-term drug dependency and the connection between that dependency and his offending, met the criteria in s 5A of the Act. The matter was referred to the Drug Court accordingly.

Orders Made

  • Non-parole period of 2 years and 8 months, commencing 10 September 2021, with eligibility for parole on 9 May 2024.
  • Balance of term of 1 year and 4 months, expiring 9 September 2025.
  • Referral to the Drug Court to determine whether the offender should be subject to a compulsory drug treatment order under the Drug Court Act 1998.

Key Takeaways

  • A sentencing court retains discretion to backdate a sentence to a point during a parole revocation period where fairness demands it, even where the offending occurred shortly after release on parole. The District Court applied Callaghan v R to justify commencing the sentence before the formal expiry of the parole balance.
  • Under s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999, an early guilty plea in the Local Court attracts a 25% discount off the sentence that would otherwise have been imposed.
  • Where a sentenced offender has a long-term drug dependency, and the offence is connected to that dependency and an associated lifestyle, s 18B(2) of the Drug Court Act 1998 imposes a duty on the sentencing court to assess eligibility for compulsory drug treatment detention and to refer the matter to the Drug Court if the criteria in s 5A are satisfied.
  • The offence of recklessly damaging property by fire under s 195(1)(b) of the Crimes Act 1900 carries a maximum of ten years imprisonment and does not attract a standard non-parole period.
  • Sufficient grounds existed here to satisfy each element of s 5A of the Drug Court Act 1998, including the requirement that the unexpired non-parole period be at least 18 months and the total unexpired sentence not exceed six years.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 195(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Part 3 Div 1A; s 25D(2)(a); Part 4 Div 1A
- Drug Court Act 1998 (NSW), Part 2A; ss 5A, 18B(2)
- Drug Misuse and Trafficking Act 1985 (NSW)

Cases:
- Amante v R [2020] NSWCCA 34
- Callaghan v R [2006] NSWCCA 58
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- Imbornone v R [2017] NSWCCA 144
- Newman v R [2021] NSWCCA 101
- R v Masters [2021] NSWDC 315
- R v Qutami [2001] NSWCCA 353
- Simms v R [2014] NSWCCA 286