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7
District Court 3 November 2023

R v Brown

[2023] NSWDC 477

Assault & violenceDrugsFraud & dishonestyTheft & property
CRIME SENTENCING ATTEMPT STEAL MOTOR VEHICLE LARCENY I NTENTIONALLY DESTROY PROPERTY BY FIRE POSSESS PROHIBITED DRUG

Citation: R v Brown [2023] NSWDC 477
Court: District Court of New South Wales
Date: 3 November 2023
Judge: Fitzsimmons SC DCJ

Background

The offender, a 31-year-old man from Macquarie Fields, pleaded guilty at Campbelltown Local Court on 21 December 2022 to five offences, all arising from a sequence of events on 23 May 2022. Two further offences were dealt with on a Form 1 (that is, taken into account at sentencing without separate conviction). The offending occurred while the offender was on parole for an earlier sentence of 6 years and 9 months imposed for aggravated break and enter and commit a serious indictable offence involving wounding.

The events of 23 May 2022 unfolded across a single afternoon in Ingleburn. The offender attempted to steal a parked car, then entered a family home and demanded the occupant's car keys by threats, including in the presence of her children, before driving the stolen vehicle away. He then stole items from a tradesperson's utility vehicle at a nearby property, set fire to the stolen Ford Territory near his own home, and was found the following day in possession of methylamphetamine.

The offender had an extensive criminal history dating from juvenile offences and continuing through to the index offending, including prior convictions for dishonesty, driving, and serious break and enter offences.

  • What aggregate sentence was appropriate across five offences of varying seriousness, applying the principle of totality?
  • How should two Form 1 offences be treated in the sentencing exercise?
  • What weight should be given to the offender's background, including principles from Bugmy v The Queen, his lengthy criminal record, and his guilty plea?
  • What commencement date should apply to the aggregate sentence, given that the offender's parole was revoked due to the current offending?
  • Whether special circumstances existed to justify varying the statutory non-parole period.

Decision

Fitzsimmons SC DCJ identified the aggravated entry to the dwelling with intent to commit larceny (Sequence 14) as the principal offence for the purposes of the aggregate sentence. The offending overall was characterised by a series of escalating acts across a single afternoon, involving the vulnerability of victims (including children present during the home invasion), brazen conduct in a residential area, and the deliberate destruction of the stolen vehicle.

The court considered the offender's difficult background under the Bugmy principles, which recognise that a deprived background and exposure to violence may reduce moral culpability. However, it noted that the offender's lengthy prior record, including very similar offending, diminished the mitigatory weight that background could otherwise attract. The guilty plea was taken into account, as was the Sentencing Assessment Report and psychological evidence.

On the question of special circumstances, the court declined to make such a finding. The offender's engagement with supervision while on parole had been inconsistent, he had failed to report on numerous occasions, he had not completed any alcohol or drug counselling, and he had continued to accumulate disciplinary reports in custody. The court was not satisfied there was sufficient utility in extending the parole period beyond the statutory proportion.

On commencement date, the court applied the relevant principles for cases where parole has been revoked. It noted the similarity between the earlier offending and Sequence 14, and that the current offending was one of the reasons for revocation (alongside failures to engage with supervision). The aggregate sentence was backdated to 1 February 2023.

Orders Made

  • The offender is convicted of all offences following his guilty plea.
  • An aggregate sentence of imprisonment of 4 years 6 months is imposed, commencing 1 February 2023 and expiring 31 July 2027.
  • A non-parole period of 3 years 4 months is imposed, commencing 1 February 2023 and expiring 31 May 2026.
  • The earliest date of eligibility for release on parole is 31 May 2026.

Key Takeaways

  • The District Court confirmed that when sentencing for multiple offences arising from a single course of conduct, the principle of totality requires the court to fix an aggregate sentence that is just and appropriate for the overall criminality, rather than simply accumulating individual terms.
  • Under Bugmy v The Queen, a deprived background may reduce moral culpability even for an offender with a long criminal record, but the mitigatory weight of that background diminishes as prior offending accumulates, particularly where the prior and current offences are similar in nature.
  • Form 1 offences are taken into account in the sentencing exercise without a separate conviction, but the court must apply the principles established in the relevant Attorney General's Application to ensure they are properly reflected in the sentence imposed.
  • Where parole is revoked in connection with the offences being sentenced, the court retains significant discretion in setting the commencement date. Relevant factors include the similarity between the earlier and current offending, the length of time spent on parole, and the reasons for revocation.
  • A finding of special circumstances, which would extend the parole portion of a sentence beyond the statutory ratio, was declined on the facts here, given the offender's poor compliance with supervision conditions and failure to engage with rehabilitative programs both on parole and in custody.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 99(1), 111(2), 117, 154F, 195(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW), s 10(1)

Cases:
- Bugmy v The Queen (2013) 249 CLR 571
- Muldrock v R (2011) 244 CLR 120
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1
- R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381
- R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353
- Alkanaan v R [2017] NSWCCA 56
- Imbornone v R [2017] NSWCCA 144
- Hoskins v R [2016] NSWCCA 157; [2021] NSWCCA 169
- Hall v R [2021] NSWCCA 220
- Hesketh v R [2021] NSWCCA 262
- Field v R [2020] NSWCCA 105
- Lloyd v R [2022] NSWCCA 18
- DC v R [2023] NSWCCA 82
- Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81
- Regina v Fidow [2004] NSWCCA 172