Citation: R v Johnson [2023] NSWDC 541
Court: District Court of New South Wales
Date: 5 December 2023
Judge: Lerve DCJ
Background
The offender appeared at Wagga Wagga District Court for sentencing on a series of offences committed in the early hours of 29 December 2022 in Wagga Wagga. The offending spanned a single night and involved two residential break-ins to steal motor vehicles, the deliberate destruction of one of those vehicles by fire at a nearby home, and a dangerous police pursuit.
The offender had pleaded guilty at an early stage, along with a co-offender, Caine Fox, who was sentenced separately on 23 November 2023 for a number of the same matters. Unlike Fox, the offender faced additional charges relating to the arson and the police pursuit, both of which his Honour described as relatively serious examples of their respective offences.
The matter was notable for a near-complete absence of subjective evidence. Despite the efforts of the court and defence counsel, the offender declined to provide meaningful personal material, leaving the court to rely on submissions and his substantial criminal history.
Legal Issues
- What sentences were appropriate for each individual offence, accounting for objective seriousness and the 25% discount for early guilty pleas?
- How should the parity principle apply where the co-offender was not charged with the arson or police pursuit matters?
- Should special circumstances be found, warranting a non-parole period below the standard one-third balance of term?
- What weight should be given to the offender's background (including drug use and a history consistent with approaching institutionalisation) under the principles in Bugmy v The Queen?
- How should the court assess specific and general deterrence in sentencing?
Decision
His Honour found that the individual offences ranged from typical or unremarkable examples of their kind (the enter-building-with-intent and being-carried-in-a-stolen-vehicle charges) to more serious instances (the arson and police pursuit). The aggravated break and enter was assessed as below mid-range but not substantially so, particularly given the $30,000 value of the stolen Audi. The arson, which spread fire to an occupied home's carport and caused extensive structural damage, was treated as the more serious end of the offending.
On parity with Caine Fox, his Honour was satisfied that a greater sentence was justified. Fox had not been charged with either the arson or the police pursuit, and the court had more complete information about the value of stolen property in the present matter. The parity principle (drawn from Veen v The Queen (No 2) and related authorities) requires comparable sentences for comparable offending, but the differences in charges here clearly warranted a different outcome.
His Honour accepted that Bugmy principles applied: the offender's background, including drug use and signs of approaching institutionalisation, were relevant to moral culpability and the weight given to specific deterrence. However, those factors do not diminish the importance of general deterrence for this type of offending.
Special circumstances were found to exist. The non-parole period was set at 65% of the total sentence rather than the standard 75%, reflecting the offender's need for an extended period of supervision on parole to support rehabilitation. His Honour recommended the offender's release at the expiration of the non-parole period.
Orders Made
- The offender was convicted on all charges to which he pleaded guilty.
- An aggregate sentence of 5 years imprisonment was imposed, with a non-parole period of 3 years and 3 months.
- The non-parole period runs from 30 December 2022 and expires on 29 March 2026; the balance of term on parole runs from 30 March 2026 to 29 December 2027.
- The court recommended the offender's release at the expiration of the non-parole period.
- A finding of special circumstances was made; the non-parole period represents 65% of the total sentence.
- The offender was disqualified from driving for 2 years (police pursuit matter) and 12 months (dangerous driving matter), to be served concurrently.
- A compensation order of $30,000 was made in favour of the owner of the destroyed Audi.
- The unlicensed driving charge was dealt with pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999: conviction recorded, no further penalty.
Key Takeaways
- The parity principle does not require identical sentences for co-offenders where the charges differ materially. Here, the absence of arson and police pursuit charges against Fox provided clear justification for a longer sentence against the offender.
- Under Bugmy v The Queen, evidence of deprivation, drug dependency, and a pattern of institutionalisation remains relevant at sentencing even where objective seriousness is high, but does not displace the weight given to general deterrence.
- Special circumstances can be established where an offender with a significant criminal history and limited subjective material requires a longer period of post-release supervision; the non-parole period need not follow the default one-third balance in those cases.
- A near-complete absence of subjective evidence does not prevent sentencing from proceeding. The court drew on criminal history, submissions, and available material where the offender declined to provide personal background.
- Compensation orders are available alongside custodial sentences. The District Court ordered $30,000 in compensation to the vehicle owner, reflecting the documented value of the destroyed property.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW): ss 112(2), 114(1)(d), 154A(1)(b), 195(1A)(b), s 51B(1)
- Road Transport Act 2013 (NSW): ss 53(1)(a), 117(2)
- Criminal Procedure Act 1986 (NSW): s 166
- Crimes (Sentencing Procedure) Act 1999 (NSW): s 10A
Cases
- Bugmy v The Queen [2013] HCA 37
- Byrne & Cahill v R [2021] NSWCCA 185
- Hunter v R [2011] NSWCCA 141
- Veen v The Queen (No 2) (1988) 164 CLR 465