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District Court 12 July 2024

R v Clarkson

[2024] NSWDC 283

Assault & violenceFraud & dishonestyTheft & property
ASSAULT DISHONESTY ACCUMULATION, CONCURRENCY AND TOTALITY S 25D(4)(A) REFUSAL OF AN OFFER TO PLEAD GUILTY

Citation: R v Clarkson [2024] NSWDC 283
Court: District Court of New South Wales
Date: 12 July 2024
Judge: Newlinds SC DCJ

Background

The offender, born in 1986, came before the District Court for sentencing on three matters spanning late 2022 and mid-2023. The first was a street robbery committed on 10 November 2022 at Bankstown, in which the offender, wearing a hood and face mask, confronted a 63-year-old victim in an underground carpark and demanded his car keys and mobile phone. After the victim handed over his phone, the offender drove away in the victim's Mitsubishi Triton ute.

The offender was arrested on 13 November 2022 and has remained in custody since. While on remand, he served a separate six-month fixed term for a dishonesty offence committed one week before the robbery. A Local Court Magistrate imposed that sentence in September 2023, but backdated it to commence 30 March 2023.

On 18 May 2023, while in custody at Clarence Correctional Centre awaiting trial for the robbery, the offender committed a further offence against another inmate involving the use of an offensive weapon with intent to commit a serious indictable offence. The procedural history was complicated: the robbery originally proceeded to trial on a more serious charge under s 97(2) of the Crimes Act, but on the second day of proceedings a fresh indictment was presented and the offender pleaded guilty to the lesser charge under s 94(a). Sentencing was adjourned twice, ultimately to allow both matters to be dealt with together.

  • What was the objective seriousness of the robbery offence, taking into account the offender's significant drug affectation at the time?
  • What sentencing discount, if any, applied to the late guilty plea to the robbery charge, entered only after trial had commenced?
  • Whether s 25D(4)(a) of the Crimes (Sentencing Procedure) Act 1999 (the refusal-of-offer-to-plead provision) affected the discount available for the robbery plea?
  • What indicative sentences were appropriate for each offence individually, before considering accumulation and totality?
  • Whether s 56 of the Crimes (Sentencing Procedure) Act 1999 applied to the in-custody offences, and what policy considerations governed sentencing for offending in custody?
  • How the principles of accumulation, concurrency, and totality should operate across the three sets of offences to produce an appropriate aggregate sentence?
  • Whether special circumstances existed to justify varying the standard non-parole period proportion?

Decision

The robbery offence. The court found the robbery to be of low-to-moderate objective seriousness. The offender was significantly drug-affected, which explained (though did not excuse) his conduct, and the offence was largely spontaneous and amateurish. The victim was not physically harmed, though he was frightened. Aggravating factors included the offender's substantial criminal history. The late guilty plea, entered only after two days of pre-trial argument and on the eve of jury empanelment, attracted a discount of 25 per cent rather than the maximum available, reflecting that it was not an early plea. The court identified an indicative sentence of four years with a non-parole period of three years before applying the discount.

The in-custody offences. The 18 May offences were treated as significantly more serious. The offender used an improvised weapon against a fellow inmate. The fact that the offending occurred in custody was a significant aggravating circumstance, attracting heightened considerations of general deterrence and public protection. The court considered the operation of s 56 of the Sentencing Procedure Act (which governs the commencement of sentences for offences committed while in custody) and concluded that its policy underpinning reinforced the need for the in-custody sentence to be accumulated upon the robbery sentence. Indicative sentences were six years for the primary charge and one year for the s 166 certificate offence, wholly accumulated to six years, before the 25 per cent discount.

Totality and the aggregate sentence. Applying the principle of totality, the court concluded that simply accumulating all indicative sentences would produce a crushing sentence disproportionate to the offender's overall criminality. The court therefore imposed an aggregate sentence of five years, commencing 13 February 2023. The offender's subjective case included a history of childhood sexual abuse, long-term drug addiction, and a pending compensation claim that might fund private rehabilitation. The court assessed rehabilitation prospects as less than probable but declined to abandon the prospect entirely.

Special circumstances. The court found special circumstances existed. A longer period on parole supervision was considered necessary to maximise whatever rehabilitation prospects remained. Accordingly, the non-parole period was set at 50 per cent of the total term rather than the standard two-thirds proportion, producing a minimum non-parole period of two and a half years.

Orders Made

  • Aggregate sentence of 5 years imprisonment imposed, commencing 13 February 2023.
  • Minimum non-parole period of 2 years and 6 months, commencing 13 February 2023 and expiring 12 August 2025.
  • Indicative sentence for the robbery charge: 3 years with a non-parole period of 2 years and 3 months (after 25% discount).
  • Indicative sentence for the primary 18 May offence: 4 years (after 25% discount).
  • Indicative sentence for the s 166 charge: 9 months (after 25% discount).
  • The 18 May offences wholly accumulated to 4 years with a non-parole period of 3 years (before totality adjustment).

Key Takeaways

  • Under s 56 of the Crimes (Sentencing Procedure) Act 1999, sentences for offences committed while in custody carry a strong policy presumption in favour of accumulation, reflecting the heightened need for general deterrence when an offender commits further crimes from within the prison system.
  • A guilty plea entered only after two days of pre-trial argument, on the eve of jury empanelment, does not attract the maximum available discount; the District Court treated the lateness of the plea as a material factor in limiting the reduction to 25 per cent.
  • Significant drug affectation at the time of offending may contextualise the objective seriousness of an offence without operating as a mitigating factor in its own right.
  • Applying the totality principle, the court reduced what would otherwise have been a substantially longer combined sentence to five years, on the basis that full accumulation would have been crushing and disproportionate to the offender's overall criminality.
  • Special circumstances were established where the court found that a longer period of post-release supervision offered the best, albeit limited, prospect of rehabilitation, resulting in the non-parole period being reduced to 50 per cent of the total term.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): ss 33B(1)(a), 94(a), 97(2), 253E(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW): ss 3A, 5, 21A(2)(d), 21A(3)(c), 25D, 25D(4)(a), 25D(4)(b), 56(1)(a), 56(1)(b), 56(2), 56(3)
- Crimes (Administration of Sentences) Act 1999 (NSW): ss 3, 4

Cases
- Bugmy v The Queen (2013) 249 CLR 571
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
- Hraichie v The Queen [2022] NSWCCA 155
- Mill v The Queen (1988) 166 CLR 59
- Postiglione v The Queen (1997) 189 CLR 295
- R v Hemsley [2004] NSWCCA 228
- R v Henry [1999] NSWCCA 111
- R v Holder [1983] 3 NSWLR 245
- R v Jeremiah [2016] NSWCCA 241
- R v MAK [2006] NSWCCA 381
- R v Wang (No 1) [2020] N