Citation: R v Xavier [2023] NSWDC 528
Court: District Court of New South Wales
Date: 29 November 2023
Judge: Scotting DCJ
Background
The offender pleaded guilty to one count of concealing a serious indictable offence contrary to s 316(1) of the Crimes Act 1900. The offence arose from events on 21 December 2020 at a commercial premises within Bankstown Aerodrome, where co-offenders were in the process of extracting pseudoephedrine that had been concealed inside imported automotive side steps.
The offender attended the premises for what the court accepted was a lawful purpose: to dispose of cardboard in a skip bin and to inquire about purchasing a reptile for his daughter. He remained at the premises from approximately 9:18am until his arrest at 11:50am, during which time co-offenders used grinders and other tools to access the side steps. His fingerprints were found on the surfaces of the steps and on a black plastic bag, and his DNA appeared on plastic wrapping from the steps.
The offence was charged under New South Wales law by operation of the Commonwealth Places (Application of Laws) Act 1970 (Cth), because the conduct occurred within a Commonwealth place. The offender had been released on parole in September 2018 in relation to prior drug and firearms offences, and was therefore on conditional liberty at the time of the offence.
Legal Issues
- Whether the offender's subjective circumstances and plea of guilty warranted a significant reduction in sentence.
- What level of objective seriousness attached to this particular instance of the offence.
- How to balance general and specific deterrence against strong rehabilitation prospects and genuine remorse.
- What the appropriate sentence was, having regard to 8 months and 21 days of presentence custody already served.
Decision
Objective seriousness and the mental element
The court found that the prosecution could not establish the precise period during which the offender held relevant information, noting he was present at the premises for approximately 2.5 hours before arrest (at [51]). Scotting DCJ was not satisfied beyond reasonable doubt that the offender knew his co-offenders were committing a serious indictable offence, but was satisfied beyond reasonable doubt that he believed they were (at [53]). The court accepted that he had attended for a lawful purpose and saw what occurred without being entirely certain of its nature (at [54]). The offence was placed at the very lowest end of the scale of objective seriousness (at [56]).
Plea of guilty
The offender entered his guilty plea in the District Court to a charge on the indictment that was substantially less serious than offences he had previously faced. The plea saved witnesses from being called, demonstrated remorse, and facilitated the course of justice. The court applied a 25% discount for utilitarian value (at [6]).
Subjective circumstances
The court identified several significant mitigating features. The offender demonstrated genuine remorse and accepted responsibility for his actions (at [61]). He had good prospects of rehabilitation, supported by a stable relationship, engagement with parole supervision, and a recently established business (at [60]). His time on remand, served at a facility five hours from home during COVID-19 lockdowns, was found to be particularly onerous (at [63]). The offence was committed while on conditional liberty, which the court treated as an aggravating factor under s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999 (at [59]).
Sentence
The court determined that no sentence other than imprisonment was appropriate, having considered all available alternatives (at [64]). Taking into account all matters, including the 8 months and 21 days already served on remand, the court imposed a fixed term of 4 months' imprisonment backdated to 21 December 2020. That term expired on 21 April 2021, meaning the offender had already served well beyond the sentence imposed.
Orders Made
- The offender is convicted of conceal serious indictable offence contrary to s 316(1) of the Crimes Act 1900.
- The offender is sentenced to a fixed term of imprisonment of 4 months, to date from 21 December 2020 and to expire on 21 April 2021.
Key Takeaways
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Under s 316(1) of the Crimes Act 1900, a conviction for concealing a serious indictable offence does not require proof that the offender knew a serious indictable offence was being committed; proof that the offender believed one was being committed suffices (at [53]).
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The District Court placed this offence at the very lowest end of objective seriousness where the offender's presence was brief, his purpose in attending the premises was lawful, and his opportunity to report was limited (at [54]-[56]).
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A 25% guilty plea discount applied where the plea was entered to an indictment count that was the first occasion a s 316 charge had been presented, saved the calling of witnesses, and demonstrated remorse (at [6]).
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Presentence remand time that substantially exceeds the term ultimately imposed can produce an outcome where the offender has already served their sentence in full by the time of sentencing, particularly where the overall offending is at the low end of seriousness.
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General deterrence remained a relevant sentencing consideration for public justice offences of this kind, even where specific deterrence was assessed as minimal (at [57]-[58]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900
- Crimes (Sentencing Procedure) Act 1999
- Commonwealth Places ( Application of Laws) Act 1970 (Cth)
Cases
- Mok v Director of Public Prosecutions (NSW) [2015] NSWCA 98
- R v Borkowski (2009) 195 A Crim R 1
- R v Olbrich (1999) 199 CLR 270
- R v Potter [2001] NSWCCA 441
- R v Thomson and Houlton (2000) 49 NSWLR 383