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District Court 4 October 2023

R v Love

[2023] NSWDC 609

Assault & violenceDrugsTheft & propertyFirearms & weaponsPublic order & justice offences

Citation: [2023] NSWDC 609
Court: District Court of New South Wales
Date: 4 October 2023
Judge: Haesler SC DCJ

Background

In the early hours of 10 February 2021, four masked men forced their way into a home in southern Wollongong. One intruder held a firearm and pressed it to a female victim's forehead; another wielded a machete; another kicked the female victim in the back and ribs. The group stole a substantial quantity of opals valued at approximately $500,000, leaving within two minutes on a timed signal.

Police investigations, including intercepted calls and messages, led to the identification and arrest of Clayton Love as one of the four participants. Further investigations uncovered additional offending by Love: possession of multiple unlicensed pistols, supply of methylamphetamine on seven occasions, and a sustained campaign to persuade a witness to retract her statement and to obstruct police inquiries.

Love was also subject to an Apprehended Domestic Violence Order (ADVO) that prohibited him from contacting a woman named Tina Chamberlain. While in custody on unrelated matters, he made over 160 calls to her, concealing her identity in his prison phone records, and used intermediaries to pass messages urging her to tell police she could not remember anything and to "stay staunch."

  • What sentence was appropriate for the lead offence of specially aggravated break and enter with intent to commit a serious indictable offence, committed in a home, in company, with corporal violence and dangerous weapons?
  • How should the three separate firearms possession charges be treated, given that Love was subject to a firearms prohibition order at the time?
  • What weight should be given to the drug supply offences (seven transactions totalling 7.4 grams of methylamphetamine)?
  • How should the offences of perverting the course of justice and contravening the ADVO be sentenced?
  • What reduction applied for early guilty pleas, and were special circumstances established to vary the ratio of non-parole period to total sentence?
  • Did parity with co-offenders require particular consideration?

Decision

Haesler SC DCJ sentenced Love on seven principal matters, with additional offences taken into account on Form 1 (that is, admitted offences considered at sentencing without separate conviction). Each sentence reflected a 25 per cent reduction for the utilitarian value of the early guilty pleas entered in the Local Court.

The lead offence, specially aggravated break and enter and commit a serious indictable offence, attracted an indicated sentence of 6 years 9 months with a non-parole period of 4 years 2 months. The court treated the circumstances as serious: the offending occurred in the victims' home at night, was committed in company, involved both a firearm and a machete, and included corporal violence against a female victim. A Form 1 matter for knowingly dealing with the proceeds of crime was taken into account on this count.

The three pistol possession charges each drew terms of between 1 year 6 months and 1 year 10 months. One of those counts carried a Form 1 for possessing a firearm subject to a prohibition order and possessing ammunition, reflecting the aggravated nature of Love's continued access to firearms while under a prohibition order. The drug supply sentence (1 year 10 months, with a Form 1 for possession of methylamphetamine) reflected seven separate transactions over a six-week period, albeit at quantities below commercial threshold.

The court found special circumstances warranting adjustment of the non-parole period relative to the head sentence, to allow for an extended parole period given Love's subjective circumstances, including drug addiction, an impoverished background, and the impact of multiple traumas. The court applied the principle of totality to ensure the aggregate sentence was just and not crushing, and addressed parity with co-offenders Alcock and Underwood (a pseudonym) by reference to earlier sentencing decisions in the same matter.

Orders Made

  • Specially Aggravated Break and Enter (Sequence 1, plus Form 1): 6 years 9 months; non-parole period 4 years 2 months
  • Possess Unauthorised Pistol (Sequence 17): 1 year 6 months; non-parole period 11 months
  • Possess Unauthorised Pistol (Sequence 18): 1 year 6 months; non-parole period 11 months
  • Possess Unauthorised Pistol (Sequence 19, plus Form 1): 1 year 10 months; non-parole period 1 year 2 months
  • Supply Prohibited Drug Less than Commercial Quantity (Sequence 15, plus Form 1): 1 year 10 months
  • Do an Act Intending to Pervert the Course of Justice (Sequence 3): 1 year 6 months
  • Contravene Prohibition in an Apprehended Violence Order (Sequence 2): 4 months
  • Aggregate sentence: 9 years 4 months, commencing 10 November 2021
  • Non-parole period: 6 years 1 month; parole eligibility date: 9 December 2027
  • Total sentence expiry: 9 March 2031 (reflecting special circumstances)
  • Drug proceeds order made
  • Breach of Community Release Order and Community Correction Orders proved; no further action taken on those breaches

Key Takeaways

  • The District Court applied a 25 per cent discount for utilitarian value of early guilty pleas entered at the Local Court stage, consistent with the principle that earlier pleas attract greater discount.
  • A finding of special circumstances under the Crimes (Sentencing Procedure) Act 1999 (NSW) allowed the court to extend the parole period beyond the statutory ratio, on the basis of Love's history of drug addiction, deprived background, and accumulated trauma, following the principles in Bugmy v The Queen (2013) 249 CLR 571.
  • Perverting the course of justice is treated as a serious stand-alone offence even where the defendant is already being sentenced for substantial principal offending; the sustained campaign to pressure a witness, including communications made from custody in breach of an ADVO, attracted a separate term of 1 year 6 months.
  • Possession of firearms while subject to a firearms prohibition order is treated as an aggravating feature and reflected in sentence, including through Form 1 matters.
  • Applying Postiglione v The Queen (1997) 189 CLR 295 and the totality principle, the court structured the aggregate sentence to avoid a result that was disproportionately severe when viewed as a whole, while still reflecting the cumulative gravity of offending across multiple categories over several months.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 112(3), 193B(2), 319
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 33(2)(b)
- Criminal Procedure Act 1986 (NSW), s 166
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Firearms Act 1996 (NSW), ss 7(1), 65(3), 74(1)

Cases
- Afu v R [2017] NSWCCA 246
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301
- Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41
- Dungay v R [2020] NSWCCA 209
- Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
- Harrigan v R [2005] NSWCCA 449
- Lloyd v R [2022]