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District Court 3 March 2023

R v Drew Jason Brown

[2023] NSWDC 249

Assault & violenceTheft & propertyFirearms & weaponsPublic order & justice offences
CRIME — SENTENCE ACCESSORY AFTER THE FACT ARMED ROBBERY AGGRAVATED BREAK AND ENTER COMMON ASSAULT TOTALITY COVID 19

Citation: [2023] NSWDC 249
Court: District Court of New South Wales
Date: 3 March 2023
Judge: Bright DCJ

Background

A 23-year-old offender appeared before the Gosford District Court for sentencing on six offences spanning late 2020. The offences arose from a series of distinct incidents involving, among other things, assisting two males who had carried out an armed robbery at a bottle shop, a violent break and enter at a family home in Kariong while demanding money, and possession of an unregistered firearm in a public place.

The offender also came before the court on a severity appeal against a sentence imposed in the Wyong Local Court on 11 October 2022. That Local Court sentence was an aggregate of 18 months imprisonment with a 10-month non-parole period, covering three separate offences. The offender had been in continuous custody since 31 January 2022, with an earlier period of custody between December 2020 and November 2021.

The court was required to impose an appropriate sentence across all matters and to address the interaction between the new sentences, the Local Court sentence, and the offender's substantial period of pre-sentence custody.

  • What were the appropriate indicative sentences for each of the six offences, having regard to their objective seriousness, the maximum penalties, and any standard non-parole period?
  • What discount applied to reflect the offender's pleas of guilty?
  • How should the principle of totality be applied when imposing an aggregate sentence across multiple serious offences?
  • What was the correct commencement date for the aggregate sentence, given the offender's continuous custody and the overlapping Local Court sentence?
  • What role, if any, did COVID-19 conditions in custody play in the sentencing assessment?

Decision

The court convicted the offender on all six counts and determined that imprisonment was the only appropriate penalty for each offence, having considered all alternatives. The objective seriousness of the offending was a significant factor. The break and enter at Kariong was particularly grave: it occurred at night, a vulnerable family including a toddler was present, an iron bar was brandished, and the offender partially entered the home while demanding money. The possession of an unregistered firearm in a public place was treated as the aggravated form of the offence.

The court applied a 25 per cent discount to each starting term to reflect the offender's pleas of guilty, consistent with the approach in cases such as Cahyadi v R and DPP (Cth) v De La Rosa. Two further matters (stalking and intimidation, and entering land with intent to commit larceny) were taken into account on a Form 1 document in connection with the aggravated break and enter charge, meaning they were considered in setting that sentence but did not result in separate penalties.

Applying the totality principle, the court imposed an aggregate sentence rather than individual cumulative terms. The aggregate was set at six years, with a non-parole period of three years. The court backdated the commencement of the sentence to 20 January 2022 to properly credit the offender's continuous period of pre-sentence custody, adjusted to account for the overlap with the separately running Local Court sentence. The court also noted that conditions of custody during the COVID-19 period were a relevant mitigating consideration in fixing the overall sentence.

Orders Made

  • The offender was convicted of all six offences.
  • An aggregate sentence of 6 years imprisonment was imposed, commencing 20 January 2022 and expiring 19 January 2028.
  • A non-parole period of 3 years was fixed, commencing 20 January 2022 and expiring 19 January 2025.
  • The offender will first be eligible for parole on 19 January 2025.
  • Indicative sentences were recorded for each individual offence pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999.

Key Takeaways

  • A 25 per cent guilty plea discount was applied consistently across all six offences, reflecting the approach established in Cahyadi v R and affirmed in DPP (Cth) v De La Rosa.
  • Under s 53A of the Crimes (Sentencing Procedure) Act 1999, the court imposed an aggregate sentence with recorded indicative terms for each constituent offence, allowing totality to be addressed across a complex, multi-offence sentencing exercise.
  • Where an offender has served substantial pre-sentence custody across overlapping matters, the sentencing court must carefully calculate the appropriate backdating to avoid double-counting or failing to credit that custody.
  • Form 1 matters (stalking and intimidation; entering land with intent) were taken into account in fixing the sentence for the principal related offence, rather than attracting separate penalties.
  • Conditions of custody during the COVID-19 pandemic were acknowledged as a mitigating factor relevant to the exercise of the sentencing discretion.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61, 93I(2), 97(1), 112(2), 114(1)(d), 347, 350, 94(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5(1), 37, 53A
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13

Cases
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- Cahyadi v R [2007] NSWCCA 1
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146