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District Court 15 September 2023

Riley v R

[2023] NSWDC 668

Theft & property
CRIME SEVERITY APPEAL 40 OFFENCES IN LOCAL COURT PAROLE PERIOD FIXED. SENTENCE FOR 3 OFFENCES AGGREGATE SENTENCE ON TOP OF NON

Citation: Riley v R [2023] NSWDC 668
Court: District Court of New South Wales
Date: 15 September 2023
Judge: Neilson DCJ

Background

The appellant had been sentenced in the Local Court at Bankstown for 40 separate offences committed between December 2020 and August 2022. The offences were predominantly property crimes, including taking and driving vehicles without consent and numerous acts of larceny, with the pattern reflecting a serious drug addiction. The Local Court imposed the maximum aggregate sentence available to a Magistrate: five years imprisonment, with no parole period fixed.

The appellant brought a severity appeal against that sentence in the District Court. Separately, the Crown brought three additional substantive charges before the District Court, two of which were within Local Court jurisdiction and one of which (breaking and entering with an offensive weapon) was strictly indictable and required committal for sentence to the District Court.

The three additional offences all arose from events in the early hours of 21 August 2022 and were committed while the appellant was subject to two Community Corrections orders and police bail.

  • Whether the Local Court was correct to decline to fix a non-parole period on the five-year aggregate sentence, pursuant to s 45 of the Crimes (Sentencing Procedure) Act 1999
  • What sentence was appropriate for the three additional substantive matters, including the strictly indictable offence of breaking and entering with an offensive weapon (s 113(2), Crimes Act 1900)
  • Whether special circumstances existed to justify departing from the standard statutory ratio between head sentence and non-parole period on the new sentences

Decision

On the severity appeal: Neilson DCJ accepted that the Magistrate was entitled under s 45(1)(c) to decline to set a non-parole period, given that the maximum sentence available to the Local Court was far less than the total of the indicative sentences. However, his Honour found that fixing a parole period was nonetheless appropriate to give the appellant an incentive to rehabilitate in custody and to facilitate supervised reintegration through Community Corrections upon release. The Magistrate's failure to fix a non-parole period was the basis for allowing the appeal.

The court observed that the appellant, born in 1984, had spent approximately 45% of his time in custody since first being taken into custody in 2009, and around 63% of the last decade in gaol. His longest continuous period in the community over that time was approximately 17 months. His Honour found the Bugmy principles applicable, noting the appellant's profound disadvantage, including drug addiction, poor education, and a life lived largely in poverty, despite the appellant not being Indigenous.

On the new sentences: For the three additional offences (larceny from a motor vehicle, an associated Form 1 matter, and the breaking and entering with an offensive weapon), the court imposed an aggregate sentence of two years and six months. His Honour found special circumstances warranting a significant departure from the standard statutory nexus between head sentence and non-parole period, fixing the non-parole period at six months. The lengthy additional term was designed to allow maximum supervised time in the community to support rehabilitation.

The court also referred the appellant to the Drug Court under s 18B of the Drug Court Act 1998 to determine whether a compulsory drug treatment order was appropriate.

Orders Made

On the severity appeal:
- Appeal allowed
- Five-year aggregate sentence amended to commence on 23 August 2022 (correcting an earlier error)
- Non-parole period fixed at three years and nine months (25% of head sentence), commencing 23 August 2022 and expiring 22 May 2026
- Additional term of one year and three months, expiring 22 August 2027

On the three new substantive matters:
- Convicted of all three offences
- Aggregate sentence of two years and six months
- Non-parole period of six months commencing 23 November 2025 and expiring 22 May 2026
- Additional term of two years, expiring 22 May 2028
- Eligible for parole from 22 May 2026
- Two Form 1 matters taken into account and executed
- Referral to the Drug Court under s 18B of the Drug Court Act 1998

Key Takeaways

  • The District Court confirmed that a Local Court Magistrate may lawfully decline to set a non-parole period under s 45(1)(c) of the Crimes (Sentencing Procedure) Act 1999 where the maximum sentence available is substantially less than the total of the indicative sentences. However, that discretion is not immune from review on a severity appeal where other considerations favour fixing a parole period.

  • Bugmy principles, which require courts to take into account the effects of profound social disadvantage on moral culpability and prospects of rehabilitation, are not confined to Indigenous offenders. Neilson DCJ expressly applied them here to a non-Indigenous appellant with a background of poverty, drug dependency, and poor education.

  • Where an offender's rehabilitation prospects depend substantially on structured, supervised support in the community, special circumstances may justify departing from the standard head sentence to non-parole period ratio, including by more than 50%. His Honour noted he infrequently varied the statutory nexus by more than 50% but was persuaded to do so here in the interests of both the offender and community safety.

  • Committing offences while subject to Community Corrections orders and on police bail constitutes a statutory aggravating factor under NSW sentencing law, and the District Court treated it as such in assessing the new charges.

  • A referral to the Drug Court under s 18B of the Drug Court Act 1998 remained available even in the context of a sentencing exercise involving multiple serious matters, reflecting the court's focus on addressing the underlying drivers of the offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 51B(1), 113(2), 344A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 45
- Drug Court Act 1998 (NSW), s 18B

Cases:
- Bugmy v R (2013) 302 ALR 192