AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 1 September 2023

R v Fell

[2023] NSWDC 353

Fraud & dishonestyTheft & property

Citation: R v Fell [2023] NSWDC 353
Court: District Court of New South Wales
Date: 1 September 2023
Judge(s): Scotting DCJ

Background

The offender, an Aboriginal man born in 1964, pleaded guilty in the Local Court to two offences arising from events in Surry Hills on 20 to 21 August 2022. The first was aggravated break and enter and commit a serious indictable offence (larceny), and the second was dishonestly obtaining property by deception.

In the early hours of 21 August 2022, the offender entered a boarding house in Surry Hills and let himself into the unlocked room of a sleeping victim. He removed property in two of the victim's bags, taking items valued at approximately $6,500 as well as the victim's bank cards, Japanese passport, and driver's licence. He spent approximately one hour and twenty minutes in the premises before leaving.

Within about thirty minutes of leaving, the offender used the victim's bank cards at multiple nearby stores to purchase tobacco products and lottery tickets totalling approximately $846. Police executed a search warrant at the offender's residence the following day, recovered some of the victim's property, and arrested him. The offender participated in a recorded interview and made full admissions.

  • What sentence was appropriate for the two offences, having regard to objective seriousness, subjective circumstances, and the applicable sentencing purposes under the Crimes (Sentencing Procedure) Act 1999?
  • Whether the offender's significant personal background, including childhood trauma, suppressed Aboriginal identity, sexual abuse, and long-term substance dependence, reduced his moral culpability.
  • Whether, notwithstanding the seriousness of the offending, an Intensive Correction Order (ICO) was an appropriate sentencing disposition rather than full-time custody.
  • What weight general deterrence, retribution, and denunciation should receive given the offender's mental health circumstances.

Decision

Scotting DCJ applied the standard sentencing fact-finding approach from R v Olbrich, finding adverse facts beyond reasonable doubt and favourable facts on the balance of probabilities. The offender received a 25% discount on sentence for his early guilty plea entered in the Local Court, pursuant to s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999.

The court considered the offender's substantial personal history in detail, drawing on a psychological report and the offender's own evidence. His background included childhood poverty, exposure to family violence, a stepfather who forbade acknowledgment of his Aboriginality, sexual abuse in juvenile detention at age 16, chronic homelessness, and decades of serious poly-substance dependence. The psychologist identified that the suppression of the offender's Aboriginal identity significantly undermined his self-esteem and sense of belonging, and increased his risk of antisocial behaviour. The court accepted that the offender's mental health and substance use conditions had a direct causal relationship with the offending.

Because of the severity of the offender's mental condition and its direct causal link to the offending, the court gave reduced weight to general deterrence, retribution, and denunciation. The court then assessed whether the sentence should be served by way of an ICO. Applying Mandranis v R, Scotting DCJ concluded that the protection of the community would be best achieved by the sentence being served in the community under an ICO, subject to strict conditions including drug rehabilitation, mental health treatment (including psychological counselling and a cognitive functioning assessment), and an NDIS assessment.

Orders Made

  • The sentence is to be served by way of an Intensive Correction Order (ICO) pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999, commencing 1 September 2023 and expiring 31 January 2026.
  • The offender must report to the City Community Corrections Office by 4pm on 8 September 2023.
  • Standard conditions apply: no further offending; submission to supervision by a Community Corrections Officer.
  • Additional conditions imposed:
  • Abstention from restricted or prohibited drugs (except those prescribed) and submission to random drug testing.
  • Receipt of mental health treatment as directed by Community Corrections, including referral to a psychologist, assessment of cognitive functioning, and an NDIS assessment.
  • Receipt of drug rehabilitation treatment as directed by Community Corrections.
  • The offender was warned that non-compliance could result in sanctions including revocation of the ICO and full-time custody.

Key Takeaways

  • Where a direct causal relationship exists between an offender's mental health condition and the commission of offences, a sentencing court may reduce the weight given to general deterrence, retribution, and denunciation.
  • The District Court confirmed that an ICO is itself a sentence of imprisonment that significantly restricts liberty, and that it can appropriately reflect the seriousness of property offending while addressing rehabilitative needs.
  • Applying Mandranis v R, the court held that in appropriate cases the protection of the community is best achieved through an ICO rather than full-time custody, particularly where mental illness and substance dependence are closely linked to the offending.
  • Suppression of an offender's Aboriginal identity, when established by evidence, is a recognised factor going to reduced moral culpability and diminished self-esteem, consistent with principles for sentencing Aboriginal offenders.
  • A 25% sentencing discount applied automatically under s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999 for a guilty plea entered in the Local Court, regardless of the circumstances of the offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 112(2), 192E(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 7(1), 21A, 25D(2)(a)

Cases:
- Mandranis v R [2021] NSWCCA 97
- R v Olbrich (1999) 199 CLR 270
- R v Zamagias [2002] NSWCA 17