AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 11 May 2023

R v Donovan

[2023] NSWDC 149

Assault & violenceTheft & property

Citation: R v Donovan [2023] NSWDC 149
Court: District Court of New South Wales
Date: 11 May 2023
Judge: Scotting DCJ

Background

The offender, a 19-year-old Biripi man, appeared for sentence after pleading guilty in the Local Court to aggravated break and enter with commission of a serious indictable offence and stealing a motor vehicle. The offences were committed in the early hours of 7 December 2021 at a multi-level residential property in Tamarama, where the victim, his wife, and three children were asleep.

The offender and a co-offender entered the property by jumping a fence and accessing the home through unlocked rear sliding doors. They stole car keys, a wallet containing cash and bank cards, and a laptop, then used the stolen keys to drive away in the victim's Audi Q7, valued at $160,000. The co-offender subsequently used the victim's bank card to make purchases, with the offender waiting outside at the time.

The offender had a background marked by significant childhood trauma, including removal from parental care, physical abuse during kinship placements, sexual abuse in juvenile justice facilities, and chronic methamphetamine use in the lead-up to the offences. He was homeless and experiencing financial hardship at the time of the offending.

  • What was the appropriate sentence for aggravated break and enter and motor vehicle theft, having regard to the objective seriousness of the offences and the offender's personal circumstances?
  • Whether the sentence should be served by way of an Intensive Corrections Order (ICO) rather than full-time custody, having regard to community safety and prospects of rehabilitation.
  • How the 25% guilty plea discount applied, and how pre-sentence custody was to be accounted for given that an ICO cannot be backdated.

Decision

Scotting DCJ applied the standard fact-finding approach from R v Olbrich, making adverse findings to the criminal standard and favourable findings on the balance of probabilities. His Honour took into account all purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999 and applied a 25% sentence discount for the early guilty plea entered in the Local Court.

The court considered the offender's troubled personal history in detail, including the trauma of early removal from parental care, physical and sexual abuse, and the destabilising effect of his father's death at age 14. Although the offender was assessed at Medium-High risk of reoffending, the court noted that, for the first time, he had stable accommodation, an impending fatherhood, demonstrated willingness to engage in rehabilitation interventions, and employment to return to.

On the question of whether an ICO was appropriate, the court applied the reasoning from Mandranis v R [2021] NSWCCA 97, which recognises that community protection can, in appropriate cases, be best served by allowing rehabilitation in the community rather than returning an offender to prison. His Honour was satisfied that the two available options, full-time custody or an ICO, weighed in favour of the ICO given the offender's prospects and current circumstances.

Because an ICO cannot be backdated, the court imposed an aggregate term of 18 months to account for the approximately 12 months of pre-sentence custody already served referable to these offences. The sentence was ordered to be served by way of ICO commencing 11 May 2023.

Orders Made

  • Aggregate term of 18 months' imprisonment, directed to be served by way of an Intensive Corrections Order pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999, commencing 11 May 2023 and expiring 10 November 2024.
  • The offender to report to Mt Druitt Community Corrections Office on or before 4pm on 18 May 2023.
  • Standard ICO conditions applied: no further offences; submission to supervision by a Community Corrections Officer.
  • Additional conditions: abstention from restricted or prohibited drugs (except those medically prescribed); drug rehabilitation treatment including random drug testing; mental health treatment as directed; no association with co-offender Brendon John McLeod.

Key Takeaways

  • The District Court confirmed that, under Mandranis v R, community safety can be best served by an ICO rather than full-time imprisonment where an offender presents genuine rehabilitation prospects, even following serious home invasion offences.
  • A guilty plea entered in the Local Court attracted a 25% sentence discount under s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999.
  • Where an ICO cannot be backdated, pre-sentence custody must be factored into the aggregate term of imprisonment imposed, rather than being deducted from a non-parole period in the usual way.
  • Significant background trauma, including childhood abuse, removal from parental care, and prior sexual abuse in state facilities, formed part of the sentencing court's consideration of the offender's moral culpability and rehabilitation prospects, even where objective seriousness of the offending remained high.
  • An offender's impending fatherhood, stable accommodation, employment prospects, and demonstrated willingness to engage in intervention programs were treated as material factors supporting the exercise of the court's discretion to impose an ICO.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 112(2), 154F
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 7(1), 21A, 25D(2)(a), 66

Cases
- Mandranis v R [2021] NSWCCA 97
- R v Olbrich (1999) 199 CLR 270