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District Court 24 May 2024

R v ASTILL

[2024] NSWDC 183

DrugsTheft & propertyTraffic & drivingPublic order & justice offences
CRIME NINE SUBSTANTIVE CHARGES TAKE AND DRIVE CONVEYANCE POLICE PURSUIT DAMAGE PROPERTY BY FIRE BREAK ENTER AND STEAL

Citation: R v Astill [2024] NSWDC 183
Court: District Court of NSW
Date: 24 May 2024
Judge: Lerve DCJ

Background

The offender appeared for sentence at Wagga Wagga District Court having pleaded guilty to nine substantive charges arising from an extended crime spree across regional New South Wales in early 2022. The offences included taking and driving motor vehicles without consent, driving dangerously in police pursuits, damaging and destroying property by fire, break enter and steal, and an aggravated break and enter involving the intimidation of a home occupant while armed with an axe. Thirty-two additional matters were listed on Form 1 documents, which the court was required to take into account in passing sentence.

The offending took place across several regional towns including Temora, Ungarie, Grenfell, Lake Cargelligo, and Gunning Gap. The offender was on parole at the time of all the offending. By his own account, he was heavily affected by drugs throughout the crime spree, having described himself as "high as a kite," and committed the offences primarily to fund his methamphetamine and cannabis use.

The pleas of guilty were entered at Cootamundra Local Court on 18 December 2023 and adhered to at the sentence hearing on 26 April 2024. The court treated the pleas as attracting the full 25% discount for their utilitarian value.

  • What aggregate sentence was appropriate given the number and seriousness of nine substantive offences, together with 32 Form 1 matters?
  • How should the Form 1 matters be weighted in the overall sentencing exercise, consistent with the Guideline Judgment on Form 1 matters?
  • What mitigating factors applied, including the offender's drug dependence, remorse, and mental health circumstances?
  • Were special circumstances established to justify a non-parole period shorter than the statutory default, particularly given the need for extended post-release supervision and treatment?
  • What risk did the offender's potential institutionalisation pose, and how should that be addressed in the sentencing structure?

Decision

Lerve DCJ identified the crime spree as reflecting a pattern of serious offending sustained over a period while the offender was subject to parole. The drug-affected state of the offender was not treated as significantly mitigating given that self-induced intoxication generally does not reduce moral culpability. However, the court acknowledged the offender's genuine remorse, his background, and the considerations drawn from the High Court's decision in Bugmy v The Queen regarding the effect of social disadvantage and substance abuse on culpability.

The court found that the Form 1 matters, given their number and the seriousness of some of them (particularly the additional property destruction and motor vehicle offences), would have "some meaningful impact" on the ultimate sentence. The court applied the principles from the CCA's Guideline Judgment on Form 1 matters accordingly.

Special circumstances were found to exist, resulting in a non-parole period of approximately 64% of the total sentence rather than the standard two-thirds. The primary reason was the offender's acute need for an extended period of supervised release, incorporating ongoing treatment for substance abuse and mental health issues. The court also noted a real risk of institutionalisation if the offender spent too long in custody without structured support for reintegration.

The court recommended in strong terms that any release to parole be supervised and conditioned on the offender complying with all reasonable directions from the Department of Community Corrections, including engagement with treatment and counselling. The court directed that a psychological report be forwarded to the Department of Corrective Services with the relevant warrant.

Orders Made

  • The offender was convicted of all nine substantive matters to which he pleaded guilty.
  • An aggregate sentence of 11 years imprisonment was imposed, with a non-parole period of 7 years.
  • The non-parole period runs from 22 October 2022 and expires on 21 October 2029.
  • The balance of term (4 years on parole) runs from 22 October 2029 and expires on 21 October 2033.
  • The court recommended the offender's release to parole at the expiration of the non-parole period.
  • The court recommended in the strongest terms that any parole release be supervised and conditioned on compliance with directions regarding substance abuse and mental health treatment.
  • The non-parole period at approximately 64% of total sentence reflects a finding of special circumstances.
  • Automatic disqualification periods were imposed for the two charges of driving in a police pursuit and driving while disqualified.
  • The psychological report (Exhibit 1) was directed to be forwarded to the Department of Corrective Services with the relevant warrant.

Key Takeaways

  • Where an offender faces a large volume of Form 1 matters, including some of significant seriousness, the District Court confirmed that those matters can have a "meaningful impact" on the total sentence, consistent with the CCA's Guideline Judgment on Form 1 matters.
  • Self-induced intoxication by drugs, even where severe, does not substantially reduce an offender's moral culpability, though background factors of social disadvantage and substance dependence remain relevant in the sentencing exercise under Bugmy v The Queen.
  • A finding of special circumstances justified a non-parole period below the statutory default where the offender required an extended period of community supervision to access treatment for drug dependence and mental health conditions, and where there was a real risk of institutionalisation from an overly long custodial term.
  • Parole recommendations, while entirely a matter for parole authorities, can be made by the sentencing court with specific conditions in mind, particularly around structured rehabilitation and supervision for high-risk offenders.
  • Being subject to parole at the time of offending is an aggravating factor, and an extended crime spree across multiple jurisdictions and victims will weigh substantially in the overall sentencing assessment regardless of the presence of mitigating factors such as remorse and early guilty pleas.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), including ss 51B, 112, 154A, 154C, 154F, 192E, 195
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 37

Cases:
- The Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 (2002) 56 A Crim R 146 (Guideline Judgment on Form 1 matters)
- Bugmy v The Queen [2013] HCA 37
- Newton v State of Western Australia [2006] WASCA 247
- Porter v R [2008] NSWCCA 145
- R v Catts (1996) 85 A Crim R 171
- R v James (1981) 27 SASR 348
- Hunter v R [2011] NSWCCA 141
- R v Gino Stocco; R v Mark Stocco [2017] NSWSC 304
- R v Harris [2007] NSWCCA 130
- R v Merrin [2007] NSWCCA 255
- Jibran v R [2020] NSWCCA 86