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District Court 16 November 2022

R v Blair; R v Fritz; R v Gordon

[2022] NSWDC 660

Assault & violenceTheft & propertyPublic order & justice offences

Citation: R v Blair; R v Fritz; R v Gordon [2022] NSWDC 660
Court: District Court of New South Wales
Date: 16 November 2022
Judge: Priestley SC, DCJ

Background

On 2 October 2021, three co-offenders participated in a violent group attack on a residential property at 2 Toona Way, South Grafton. Eight people were inside the home at the time, including two children aged six and seven. The attack lasted approximately nine minutes and involved smashing windows, striking vehicles with a hammer, breaking down the front door, entering the house, and stealing property from the occupants.

The three offenders, Blair, Fritz, and Gordon, were charged with destroying and damaging property in company and using an offensive weapon in company with the intention to commit an indictable offence. Blair and Gordon faced the additional and more serious charge of aggravated break and enter in company, committing a serious indictable offence, namely assault occasioning actual bodily harm. Blair also had a larceny matter dealt with on a Form 1 (a procedure allowing a separate offence to be taken into account when sentencing for the principal offence, without the offender being separately convicted of it).

Each offender pleaded guilty and was sentenced at the same hearing. Their individual roles, personal circumstances, and prospects for rehabilitation differed significantly, and the court imposed different sentences reflecting those differences.

Legal Issues

  • What was the objective seriousness of each offender's individual contribution to a joint criminal enterprise?
  • To what extent did each offender's background of social disadvantage reduce moral culpability under the principles in Bugmy v The Queen?
  • What weight should be given to rehabilitation, deterrence, denunciation, and community protection in each sentence?
  • Whether the section 5 threshold for imprisonment was crossed and, if so, whether an intensive correction order (ICO) was appropriate for Blair and Fritz under sections 66 and 68 of the Crimes (Sentencing Procedure) Act 1999?
  • Whether special circumstances existed in Gordon's case to justify a departure from the standard non-parole period ratio?
  • How should the principle of totality and the principle of parity between co-offenders operate across the three sentences?

Decision

Objective Seriousness: The Joint Enterprise

The court assessed the overall offending, viewed as a joint criminal enterprise, as falling well into the upper mid range of objective seriousness (at [16]). Aggravating features included that the attack occurred in a home, involved violence, and took place in the presence of young children (at [23]).

Mr Blair's Sentence: Three Years by Intensive Correction Order

Blair's individual conduct included throwing objects at the house, kicking the letterbox, yelling at occupants, and entering the home twice while armed (at [18]). The court assessed his objective seriousness as mid range for the damage offence, cusp of low and mid for the offensive weapon charge, and just below mid for the aggravated break and enter (at [18]). Blair received a 25 percent discount for his guilty plea (at [26]). The court found his subjective case to be strong: he had relocated to Port Macquarie away from antisocial associates, was undertaking hospitality courses, and had maintained six months of abstinence from alcohol and drugs (at [28]-[37]). After crediting approximately six months of custody (including a period on restrictive bail treated as quasi-custody), the court imposed an aggregate term of three years to be served by ICO, finding that community supervision was more likely than further full-time custody to address the risk of reoffending and promote rehabilitation (at [42]-[51]).

Mr Fritz's Sentence: Two Years and Four Months by Intensive Correction Order

Fritz's involvement lasted approximately two minutes and thirty seconds and was limited to yelling abuse at his brother inside the house and striking a car with a wooden paling five times (at [19]). His objective seriousness was assessed as below the mid range, markedly less than Blair's (at [20]). The court accepted that Fritz had suffered significant social disadvantage in childhood, including domestic violence, parental substance abuse, and parental abandonment, which reduced his moral culpability (at [65]). Although his compliance with rehabilitation programs prior to custody had been inconsistent, the court found that his attitude had shifted during custody, he had employment prospects, and he was expecting a second child (at [66]-[73]). The court imposed an aggregate term of two years and four months by ICO, commencing 16 November 2022 (at [71]-[79]).

Mr Gordon's Sentence: Five Years Imprisonment with Two-Year Non-Parole Period

Gordon was the most seriously involved offender. He instigated the attack, struck cars with a hammer multiple times, was enthusiastic about forcing entry into the house, and yelled "fucking we run this town" upon leaving (at [21]-[22]). His objective seriousness was assessed as in the upper middle range (at [22]). Despite his background of significant social disadvantage, which reduced his moral culpability (at [103]), the court found he demonstrated little insight into his drug use and poor prospects for rehabilitation in the short term (at [100]-[101]). He had substituted cannabis with Suboxone while in custody, which the court found reflected either a lack of insight or a state of despair rather than genuine commitment to abstinence (at [100]). The court found special circumstances due to Gordon's youth, his background, his need for drug rehabilitation, and this being his first time in custody (at [107]). An aggregate sentence of five years was imposed, commencing 2 October 2021, with a non-parole period of two years expiring 1 October 2023 and a balance of term expiring 1 October 2026 (at [109]-[113]). The sentence length meant an ICO was prohibited under section 68 (at [111]).

Orders Made

  • Blair: Convicted of damage/destroy property in company, use of an offensive weapon to intimidate in company, and aggravated break enter and commit a serious indictable offence in company. Aggregate sentence of three years imprisonment to be served by intensive correction order, commencing 16 November 2022.
  • Fritz: Convicted of destroy/damage property in company and use of an offensive weapon to intimidate in company. Aggregate sentence of two years and four months imprisonment to be served by intensive correction order, commencing 16 November 2022 and expiring 15 March 2025.
  • Gordon: Convicted of damage/destroy property in company, use of an offensive weapon to intimidate in company, and aggravated break and enter in company. Aggregate sentence of five years imprisonment with a non-parole period of two years commencing 2 October 2021 and expiring 1 October 2023, with a balance of term expiring 1 October 2026.

Key Takeaways

  • Participation in a joint criminal enterprise does not eliminate individual differentiation at sentencing: the District Court applied R v Burrow [2017] NSWCCA 45 for the proposition that joint enterprise membership limits but does not prevent differentiation, and assessed each offender's objective seriousness separately based on their specific acts (at [18]-[22]).

  • Under sections 66 and 68 of the Crimes (Sentencing Procedure) Act 1999, a sentencing court must undertake a structured three-step analysis before imposing an ICO: first, whether the section 5 imprisonment threshold is crossed; second, what the appropriate length of the sentence is; and third, whether community safety and the purposes of sentencing under section 3A are better served by an ICO or full-time custody (at [40]-[48], [71]-[75]).

  • A background of social disadvantage, accepted under Bugmy v The Queen (2013) 249 CLR 571, can reduce moral culpability and moderate the weight given to general and specific deterrence without removing those considerations from the sentencing exercise entirely (at [65], [97]-[98]).

  • Where an offender has taken concrete steps toward rehabilitation prior to sentencing, such as relocating away from antisocial peers and maintaining genuine abstinence, those steps can weigh in favour of an ICO even for serious, violence-based offending (at [36]-[48]).

  • Special circumstances justifying a departure from the standard non-parole period ratio may be found where an offender is young, imprisoned for the first time, has an acute need for drug rehabilitation, and comes from a significantly disadvantaged background, resulting in a longer parole period to allow for supervised reintegration and treatment (at [107]-[110]).

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Act 1900 (NSW)

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- R v Burrow [2017] NSWCCA 45
- R v Alferlink [2021] NSWDC 473
- Lloyd v R [2022] NSWCCA 18
- R v Millwood [2012] NSWCCA 18
- Hoskins v R [2021] NSWCCA 169