Citation: R v Szenczy [2022] NSWDC 657
Court: District Court of New South Wales
Date: 11 February 2022
Judge: Bourke SC DCJ
Background
The offender appeared for sentencing on five substantive offences committed over a roughly one-week period in October 2020. The sequence of offending began when he took his grandfather's Hyundai i30 without consent and proceeded to steal registration plates from multiple vehicles to disguise the car as he and a female co-offender committed further crimes.
The offending escalated through a violent confrontation with Bunnings staff during an attempted theft, a shoplifting episode at Myer, and finally a dangerous police pursuit through Sydney's northern suburbs in the early hours of 31 October 2020. The police pursuit involved driving at 90 to 100 kilometres per hour in a built-up area and extended over several streets before police successfully stopped the vehicle.
Four additional offences, including driving while disqualified and three larcenies, were placed on a Form 1 document to be taken into account when sentencing the offender on the primary take-and-drive charge. A further drive-disqualified offence was dealt with by way of a section 166 Criminal Procedure Act 1986 certificate.
Legal Issues
- What sentence was appropriate across five substantive offences, having regard to the objective seriousness of each and the offender's personal circumstances?
- How should the totality principle apply to produce an aggregate sentence that was neither crushing nor disproportionate?
- Whether special circumstances existed to justify departing from the standard ratio between the non-parole period and the head sentence.
- What disqualification periods should apply to the driving-related offences?
- Whether a conviction without additional penalty under section 10A of the Crimes (Sentencing Procedure) Act 1999 was appropriate for the certificate matter.
Decision
His Honour allowed a 25 percent discount across all offences in recognition of the utilitarian value of early guilty pleas. Each offence was assessed individually, producing indicative sentences of 15 months for the take-and-drive matter (incorporating the Form 1 offences), six months for the Myer shoplifting, 18 months for the police pursuit, 12 months for the assault occasioning actual bodily harm, and 15 months for the steal-from-person offence.
Rather than imposing and accumulating each indicative sentence in full, his Honour applied the totality principle to arrive at an aggregate head sentence of three years and six months, with a non-parole period of two years and two months. The indicative sentences were tools in that exercise, not terms to be served individually.
His Honour made a finding of special circumstances, grounded in the risk of the offender becoming institutionalised if the non-parole period were set at the standard proportion. This justified the slightly extended ratio between the non-parole period and the head sentence.
Considerable care was given to the commencement date. The sentence was backdated to 6 August 2021, seven months after the offender's arrest, to reflect time already spent in custody. On the certificate matter, his Honour convicted the offender under section 10A of the Crimes (Sentencing Procedure) Act 1999 but imposed no additional penalty, given the aggregate sentence already being served.
Orders Made
- Aggregate head sentence of three years and six months imprisonment, commencing 6 August 2021 and expiring 5 February 2025.
- Non-parole period of two years and two months, expiring 5 October 2023.
- Finding of special circumstances recorded.
- Conviction entered on the section 166 certificate matter (drive disqualified) with no additional penalty imposed under section 10A of the Crimes (Sentencing Procedure) Act 1999.
- Automatic disqualification of 12 months imposed for the section 166 drive-disqualified matter, to commence from 11 February 2022 (date not to run until release from custody).
- Automatic disqualification of five years imposed for the police pursuit (sequence 10) matter, also to run from 11 February 2022 and not to commence until release from custody.
Key Takeaways
- The District Court applied the totality principle to produce an aggregate sentence substantially below the sum of the individual indicative terms, reflecting the need to avoid a disproportionately crushing outcome where multiple offences are sentenced together.
- A finding of special circumstances is available where there is a genuine rehabilitative risk, such as the prospect of an offender becoming institutionalised, justifying a longer proportion of time on parole.
- Backdating a sentence to the date of arrest or remand in custody is a significant exercise of discretion; his Honour here backdated by seven months to reflect pre-sentence custody, meaningfully affecting the offender's release date.
- Under section 10A of the Crimes (Sentencing Procedure) Act 1999, a court may convict an offender without imposing further penalty where an aggregate custodial sentence already adequately reflects the totality of the criminality.
- Automatic licence disqualification periods attached to driving offences run from the date of sentence but do not begin to accrue until the offender is released from custody, meaning they operate after the custodial term is served.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), including section 51B (police pursuit offence)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including section 10A
- Criminal Procedure Act 1986 (NSW), including section 166
Cases:
- R v Hua (2002) NSWCCA 384