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District Court 15 December 2022

R v CARR

[2022] NSWDC 633

Assault & violenceTheft & propertyPublic order & justice offences
CRIME MULTIPLE PROPERTY OFFENCES AGGRAVATED BREAK ENTER AND STEAL STEAL MOTOR VEHICLE DAMAGE TO PROPERTY CRIME VIOLENT OFFENCES

Citation: R v Carr [2022] NSWDC 633
Court: District Court of New South Wales
Date: 15 December 2022
Judge: Lerve DCJ

Background

The offender appeared for sentence at the Wagga Wagga District Court on nine charges arising from a series of offences committed in the Wagga Wagga region. The charges included multiple counts of aggravated break, enter and steal, steal motor vehicle, take and drive a conveyance without consent, intentional damage to property, and one count of armed robbery.

The armed robbery was the most serious individual matter. The offender threatened a delivery driver, Mr Willis, with a knife at a FoodWorks store, forced him to drive to an ATM, and compelled him to withdraw $3,550 in cash. The offender also deprived Mr Willis of his liberty during the course of that episode, forming the basis of a separate aggravated break and enter charge.

The offender had pleaded guilty in the Local Court to the single committal-for-sentence matter, attracting a 25% utilitarian discount. Pleas of guilty to the remaining eight indictment counts were entered on 21 July 2022, following a ruling on the admissibility of a key witness statement. Those later pleas attracted a 10% utilitarian discount.

  • Whether the statement of the armed robbery victim, Mr Willis (who was unavailable to give evidence), was admissible as first-hand hearsay under s 65 of the Evidence Act 1995
  • Whether the correct legal test under s 65(2)(d)(ii), as clarified by the High Court in Sio v The Queen [2016] HCA 32, affected the earlier admissibility ruling
  • The appropriate sentences for each of the nine charges, including the application of standard non-parole periods, utilitarian plea discounts, totality, special circumstances, and subjective factors such as Bugmy considerations and chronic substance abuse

Decision

Admissibility of the witness statement

On 14 July 2022, Lerve DCJ had admitted Mr Willis's police statement under s 67 of the Evidence Act 1995 (first-hand hearsay, maker not available). The judge later recognised that the Court of Criminal Appeal decision in Sio v R [2015] NSWCCA 42, which had been extracted in those reasons, had subsequently been overturned by the High Court in Sio v The Queen [2016] HCA 32. The High Court held that s 65(2)(d)(ii) requires a judge to be positively satisfied, having regard to the objective circumstances of the making of the representation, that it is likely to be reliable notwithstanding its hearsay character.

Both parties were given the opportunity at the sentence hearing to re-argue admissibility in light of the High Court decision. Neither elected to do so. Lerve DCJ confirmed that, applying the correct High Court test, the conclusion would have been the same, given the detailed analysis of the circumstances of Mr Willis's representations set out at paragraphs [51] and following of the July 2022 ruling.

Sentencing

Individual sentences were imposed for each of the nine counts, ranging from 10 months for the taking and driving and damage to property matters up to a non-parole period of 3 years 4 months for the aggravated break and enter involving deprivation of Mr Willis's liberty. The armed robbery attracted a total sentence of 5 years 4 months with a non-parole period of 6 years (noting that the non-parole period for count 4 was set to run concurrently within the aggregate structure). Standard non-parole periods applied to counts carrying maximum penalties of 20 years were treated as a legislative guideline rather than a starting point.

The court found special circumstances warranting a departure from the standard ratio between the non-parole period and the balance of term. The non-parole period was set at 62.5% of the total sentence rather than the default 75%, reflecting the offender's need for an extended period of supervised parole given chronic substance abuse and other Bugmy factors (personal history of disadvantage that bears on moral culpability). The aggregate sentence of 10 years was designed to satisfy the principle of totality while ensuring the overall sentence reflected the full criminality of the offending.

Orders Made

  • The offender is sentenced to an aggregate sentence of 10 years imprisonment.
  • Non-parole period: 6 years 3 months, commencing 21 June 2021 and expiring 20 September 2027.
  • The balance of term commences 21 September 2027 and expires 20 June 2031.
  • The offender is eligible for release at the expiration of the non-parole period; release is recommended by the court.
  • Special circumstances found; the non-parole period represents 62.5% of the total sentence.
  • A copy of the report of Ms J Dombrowski (Exhibit 1 on sentence) to be forwarded to the Department of Corrective Services with the relevant warrant.

Key Takeaways

  • Where a judge realises mid-proceeding that a relied-upon Court of Criminal Appeal authority has been overturned by the High Court, fairness requires that both parties be given an opportunity to re-argue the affected issue before proceedings continue.
  • Under s 65(2)(d)(ii) of the Evidence Act 1995, as confirmed by the High Court in Sio v The Queen [2016] HCA 32, the focus when assessing admissibility of an unavailable maker's representation must be on whether the objective circumstances of the making of the statement affirmatively support reliability, not merely on the apparent truthfulness of the person who made it.
  • The District Court applied Bugmy v The Queen [2013] HCA 37 in reducing the proportion of the sentence served in custody, recognising that the offender's chronic substance abuse and background of disadvantage remained relevant to moral culpability at sentencing.
  • A finding of special circumstances allows a court to extend the balance of term beyond the default ratio, providing a longer period of supervised parole where the offender's rehabilitation needs are significant.
  • Utilitarian plea discounts are calibrated to the timing and circumstances of the guilty plea: a full 25% was available for the early Local Court plea, while 10% was appropriate for pleas entered at a later stage after committal for trial.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): ss 97, 112(1), 112(2), 154A(1), 154F, 195(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Evidence Act 1995 (NSW): ss 65, 67

Cases
- Bugmy v The Queen [2013] HCA 37
- Di Simoni v The Queen (1981) 147 CLR 383
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- Elyard v R [2006] NSWCCA 43
- Hunter v R [2011] NSWCCA 144
- R v Henry & Ors (1999) 46 NSWLR 346
- R v Naderi [2022] NSWDC 534
- Sio v R [2015] NSWCCA 42
- Sio v The Queen [2016] HCA 32