AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
District Court 6 October 2023

R v Doolan

[2023] NSWDC 472

Theft & property

Citation: R v Doolan [2023] NSWDC 472
Court: District Court of New South Wales
Date: 6 October 2023
Judge: Haesler SC DCJ

Background

The offender, a young man born in June 2000, appeared for sentence on two serious property offences: aggravated break and enter (s 112(2) Crimes Act 1900 (NSW)) and break, enter and steal from a dwelling (s 112(1)). A related charge of taking and driving a conveyance was included as a Form 1 matter, meaning it was taken into account during sentencing without a separate conviction.

The offender had spent most of his teenage and adult life in custody. His background was marked by extreme deprivation: exposure to domestic violence, drug abuse, and the death of a sibling at his mother's hands. He had a poor custodial history, an escapee classification, and a long record of failing to comply with parole conditions. When released to a group home in September 2022, he quickly returned to drug use and offending.

The sentencing judge described the offending as falling toward the bottom of the range for serious offences. Both parties accepted that only a custodial sentence was available given the offender's criminal antecedents, but the judge considered whether that sentence might ultimately be served in the community on an Intensive Correction Order (ICO).

  • Whether the offences and the offender's history permitted anything other than a full-time custodial sentence
  • Whether an Intensive Correction Order (a sentence served in the community under strict supervision) was available or appropriate at the time of sentencing
  • How childhood deprivation, trauma, and mental health issues should reduce the offender's moral culpability
  • Whether a section 11 remand (deferral of sentence on conditional bail) could appropriately provide an opportunity to gather evidence of the offender's capacity to comply with ICO conditions

Decision

The court accepted that both offences fell toward the lower end of the range for serious offending. Taking into account the objective seriousness of the offences, the Form 1 matter, the need for some accumulation of sentences, the early guilty plea, the offender's youth, his reduced moral culpability, and at least eight months already spent on remand, the court calculated that an aggregate sentence of less than three years could be imposed. That figure was significant because it opened the possibility, though not the certainty, of the sentence being served via an ICO.

The court reduced the offender's moral responsibility by reference to the compounding effects of childhood deprivation (applying Bugmy v The Queen (2013) 249 CLR 571), childhood trauma (Nasrallah v R [2021] NSWCCA 207), and mental health issues (DPP (Cth) v De La Rosa (2010) 79 NSWLR 1). Despite this, the court found it could not make an ICO on the day of sentencing. The paramount consideration for an ICO is community safety under s 66(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), and the offender's consistent failures on release meant that condition could not presently be satisfied.

Drawing on the High Court's guidance in Stanley v DPP (NSW) [2023] HCA 3, the court noted that ICOs should be forward-looking and accompanied by conditions that do not set the offender up to fail. The judge observed that returning the offender to full-time custody would likely lead to release on parole within months, with few enforceable support conditions, making reoffending probable. Against this background, the judge determined that a section 11 remand on conditional bail offered a better prospect of reducing long-term risk than immediate imprisonment.

The court granted bail subject to strict conditions and adjourned sentence to 7 December 2023. The judge made clear that a positive pre-sentence report and compliance with bail conditions could lead to the balance of the sentence being served on an ICO. A significant breach, particularly the commission of further offences, would result in a full custodial sentence, with the possibility that the principles in Veen v The Queen (No 2) (1988) 164 CLR 465 concerning the protection of the community from persistent offenders could then apply.

Orders Made

No orders were made in this decision.

The judgment records the following key steps taken by the court:

  • Sentence deferred pursuant to s 11 of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Bail granted under the Bail Act 2013 (NSW) subject to strict conditions, including:
  • Residence at a specified supported accommodation address (Mindtree facility)
  • Compliance with the residence agreement and directions of Mindtree
  • Curfew between 8pm and 7am (no police enforcement at the residence so as not to disturb other residents)
  • Reporting to Wollongong Police each Monday and Friday between 8am and 6pm
  • Abstention from non-prescription drugs and alcohol
  • Not to leave the courthouse except in the company of a Mindtree representative
  • Mention listed for 10 November 2023 for a progress report
  • Sentence listed for 7 December 2023
  • Full Sentence Assessment Report requested for 7 December 2023

Key Takeaways

  • A sentence of less than three years opens the possibility of an Intensive Correction Order, but community safety under s 66(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) remains the paramount consideration, and a history of consistent non-compliance on release can preclude an ICO on the day of sentencing.

  • The District Court applied Bugmy v The Queen, Nasrallah v R, and DPP (Cth) v De La Rosa in combination to reduce an offender's moral culpability where childhood deprivation, trauma, and mental health issues were inextricably interrelated causes of the offending.

  • Under s 11 of the Crimes (Sentencing Procedure) Act 1999 (NSW), a court may defer sentence and grant conditional bail to allow an offender to demonstrate capacity to comply with ICO conditions where that evidence cannot be gathered while the offender is in custody.

  • Following Stanley v DPP (NSW) [2023] HCA 3, ICOs must be forward-looking and structured so as not to set the offender up to fail. Conditions must be capable of being met given the offender's actual circumstances, including available support resources such as the NDIS.

  • Where immediate return to custody and subsequent parole release would likely produce a worse community safety outcome than a supervised community-based opportunity, the sentencing court may treat the short-term risk of a s 11 remand as preferable, while making clear that further offending will attract the full intended custodial sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 112(1), 112(2), 154A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 11, 66(1)
- Bail Act 2013 (NSW)

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Nasrallah v R [2021] NSWCCA 207
- R v Doolan (No 2) [2010] NSWSC 194
- Stanley v Director of Public Prosecutions (NSW) [2021] NSWCA 337; [2023] HCA 3
- Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14