AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 13 October 2023

R v Pickering

[2023] NSWDC 425

Assault & violenceTheft & property
CRIME

Citation: R v Pickering [2023] NSWDC 425
Court: District Court of NSW
Date: 13 October 2023
Judge(s): Mahony SC DCJ

Background

The offender, aged 23 at the time, participated in a group home invasion in the early hours of 13 February 2022. He and three co-offenders travelled from Mascot to a residential property in Tempe, where the offender had been in phone contact with a woman at the premises. The group forced entry by smashing a rear sliding glass door and attacked two occupants inside.

The offender was armed with a 50cm machete, which he used to strike one victim on the right wrist, severing multiple tendons and causing a significant wound. The injury required surgical repair but was not classified as grievous bodily harm. A second victim was also assaulted by multiple co-offenders inside and outside the premises.

The offender was arrested two days later and had remained in custody since 15 February 2022. He pleaded guilty in the Local Court to specially aggravated break, enter and intentionally wound under s 112(3) of the Crimes Act 1900. At the time of the offence, he was on bail for two unrelated matters and subject to both a Conditional Release Order and a Community Correction Order.

Legal Issues

  • What was the appropriate objective seriousness of the offending within the range prescribed for s 112(3) of the Crimes Act 1900?
  • How should the parity principle apply given the sentences already imposed on three co-offenders?
  • What weight should be given to the offender's significant subjective circumstances, including Complex PTSD, poly-substance abuse, and early trauma?
  • Whether special circumstances existed justifying a departure from the standard non-parole period ratio under s 44(2) of the Crimes (Sentencing Procedure) Act 1999?
  • Whether the sentence should be backdated to apply totality and proportionality having regard to the prior sentence the offender was already serving?

Decision

Objective Seriousness

The court assessed the offending as falling just below the mid-range for a s 112(3) offence, placing it in the upper part of the low range, while noting it still constituted serious offending (at [75]). Relevant factors included the offender's use of a machete, the injury caused to the victim, and the planned (though unsophisticated) nature of the enterprise. The court declined to adopt the characterisation of the offender as "ringleader" from the co-offenders' sentencing remarks, noting those proceedings were conducted on different agreed facts. However, the court found the offender's participation was integral to the criminal enterprise (at [75]).

Parity with Co-offenders

The co-offenders Rutherford and Risati were sentenced under s 112(2), which carries a lower maximum penalty (20 years) and a lower standard non-parole period (5 years) than s 112(3). Both co-offenders had no knowledge the offender was armed with a machete, and neither directly caused the wounding (at [85]). Rutherford received 2 years and 8 months with a 16-month non-parole period; Risati received 3 years and 3 months with a 20-month non-parole period. The court applied parity principles while recognising the materially more serious charge faced by the offender and his direct use of the weapon (at [90]).

Subjective Circumstances

The court accepted evidence from a forensic psychiatrist that the offender met criteria for Complex PTSD and a Substance Use Disorder, and carried a high loading of historical risk factors for violence (at [41]-[42]). His exposure to domestic violence, childhood sexual abuse in a Juvenile Justice facility, and poly-substance use from early adolescence were found to reduce his moral culpability and to diminish the significance of both general and specific deterrence (at [84]). Drug intoxication was not treated as a mitigating factor in itself but provided context for the offending (at [78]).

Special Circumstances and Sentence

The court found special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, based on the offender's age, significant subjective history, and the need for extended supervision to support rehabilitation upon release (at [84]-[91]). A 25% utilitarian discount applied for the early guilty plea (at [46], [81]). The court expressed acceptance of the offender's remorse as genuine, rejecting the Crown's submission that his pre-offence conduct at the scene undermined the sincerity of his expressed contrition (at [81]). The sentence was backdated to 22 August 2022 to apply totality and proportionality having regard to the prior sentence already being served (at [91]).

Orders Made

  • Convicted of specially aggravated break, enter and intentionally wound under s 112(3) of the Crimes Act 1900.
  • Sentenced to a total term of 4 years and 6 months imprisonment.
  • Non-parole period of 2 years and 3 months, commencing 22 August 2022 and expiring 21 November 2024.
  • Balance of term of 2 years and 3 months, from 22 November 2024 to 21 February 2027.
  • Recommendation that the offender be assessed for, and serve his sentence at, the Compulsory Drug Treatment Correctional Centre at Parklea Correctional Centre.
  • Parole eligibility date: 21 November 2024 (release not automatic; subject to State Parole Authority determination and stringent conditions).

Key Takeaways

  • The District Court confirmed that aggravating factors inherent in the offence itself, including the use of actual violence and the commission of the offence in company, are not to be double-counted as separate statutory aggravating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999 (at [77]).

  • Where co-offenders were charged under a lesser provision carrying a lower maximum penalty and standard non-parole period, and were sentenced on materially different agreed facts, the parity principle does not require identical outcomes; it requires that the sentencing court identify and account for all relevant differences in role, culpability, and charge (at [85]-[90]).

  • A complex history of childhood trauma, early-onset poly-substance abuse, and diagnosed mental health disorders, even without a direct causal nexus to the index offending, can reduce an offender's moral culpability and diminish the weight given to general and specific deterrence in the sentencing exercise (at [84]).

  • Under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, special circumstances may be found where an offender's age, subjective background, and rehabilitative needs make an extended period of supervised parole appropriate, resulting in a non-parole period proportionally shorter than the standard statutory ratio (at [91]).

  • A recommendation for placement at the Compulsory Drug Treatment Correctional Centre at Parklea is available as a sentencing option where the offender meets eligibility criteria and treatment of underlying substance abuse is identified as central to reducing the risk of reoffending (at [91]).

Legislation and Cases Referenced

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

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- DPP (Cth) v MHK (2017) 267 A Crim R 235; [2017] VSCA 157
- Fahs v Regina [2007] NSWCCA 26
- Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
- R v Fernando (1992) 76 A Crim R 58
- R v Henry (1999) A Crim R 149; [1999] NSWCCA 111
- R v Israil [2002] NSWCCA 225
- R v Millwood [2021] NSWCCA 2
- R v Robinson [2014] NSWCCA 12