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District Court 8 November 2024

R v Dean

[2024] NSWDC 527

Assault & violenceTheft & propertyPublic order & justice offences
MENTAL HEALTH DIAGNOSIS ENTITLED TO ONE LAST CHANCE

Citation: R v Dean [2024] NSWDC 527
Court: District Court of New South Wales
Date: 8 November 2024
Judge(s): Newlinds SC DCJ

Background

The offender, a 33-year-old man with an extensive criminal history dating back to 2010, pleaded guilty to a series of offences committed in early 2022. The charges included five counts of break, enter and steal, two counts of assault occasioning actual bodily harm on police officers in the execution of their duty, one count of taking and driving a conveyance without consent, and additional matters placed on a Form 1 (meaning they were taken into account at sentencing without separate conviction). The offences occurred across multiple locations, primarily in the Camperdown area.

The offender had been arrested on 31 May 2022 and spent nine months and two days in pre-sentence custody before being granted bail in March 2023. His prior record included convictions for offences spanning property crime, violence, drug possession, and dishonesty, and he had previously been dealt with by the Drug Court and received numerous suspended sentences and bonds.

At a hearing in November 2023, the offender applied under s 11 of the Crimes (Sentencing and Procedure) Act 1999 (NSW) to adjourn sentencing for 12 months. The purpose was to allow him to demonstrate, for the first time, genuine commitment to addressing childhood trauma, mental health conditions, and drug and alcohol addiction. The court, with acknowledged hesitation, granted that adjournment. Sentencing then proceeded in November 2024.

  • Whether the objective seriousness of the offending and the offender's significant criminal history required a sentence of full-time imprisonment.
  • Whether the offender's demonstrated rehabilitation during the s 11 adjournment period, combined with his subjective circumstances, justified a further "last chance" in the form of a non-custodial sentence.
  • Whether an Intensive Corrections Order (ICO) was appropriate given the nature and number of the offences and the offender's history of repeated leniency from courts.

Decision

Newlinds SC DCJ had no difficulty concluding that the s 5 threshold was crossed: nothing short of full imprisonment was appropriate in principle, given the mid-range seriousness of the offending and the offender's appalling criminal history. The judgment acknowledged that the offender had received what, with hindsight, were extremely lenient sentences on prior occasions, none of which had deterred reoffending.

However, the court was persuaded that the offender's conduct during the 12-month adjournment warranted a departure from full-time custody. During that period, the offender remained drug-free, maintained engagement with his psychologist and mental health treatment plan, established a stable family situation, and secured a conditional offer of employment. His Honour commended the offender's dedication and found this conduct to be extremely relevant to the sentencing outcome, as foreshadowed at the November 2023 hearing.

The court characterised all of the offending as one connected, albeit significant, episode of criminal conduct and imposed a single aggregate sentence. The decision to accumulate all sentences (rather than run them concurrently) reflected the volume and nature of the charges, but the aggregate was structured to permit service in the community. The court emphasised in express terms that this was genuinely the offender's last chance, and that any breach of the ICO conditions would produce what his Honour described as catastrophic consequences.

Orders Made

  • Aggregate sentence of 2 years' imprisonment, commencing 8 November 2024, to be served in the community pursuant to an Intensive Corrections Order.
  • The offender must be of good behaviour.
  • Report to a Community Corrections Officer within 7 days and submit to supervision.
  • Reside at a specified address in Five Dock, NSW; address changes require written consent from the supervising psychologist.
  • No alcohol or non-prescribed drugs.
  • Continue engagement with a general practitioner for mental health and drug rehabilitation treatment.
  • Continue treatment under the supervision of psychologist Mr Chafic Awit and comply with all directions under the treatment plan, including provision of urine analysis samples and, if directed, residential rehabilitation programs.
  • Attend regular urine analysis tests and report results to the psychologist, the DPP solicitor, and the officer in charge.
  • Attend at least weekly Narcotics Anonymous meetings and provide evidence of attendance to the psychologist.
  • Any breach must be brought to the court's attention by the offender's lawyers, with the matter relisted for further consideration.

Key Takeaways

  • The District Court confirmed that a guilty plea to multiple mid-range break and enter and assault police offences, against a background of extensive prior convictions, will ordinarily cross the s 5 threshold requiring full-time imprisonment, regardless of subjective factors.
  • A section 11 adjournment under the Crimes (Sentencing and Procedure) Act 1999 (NSW) can serve a meaningful sentencing function: where an offender uses the adjournment period to demonstrate genuine, sustained rehabilitation, that conduct becomes directly relevant to the ultimate sentencing disposition.
  • Demonstrated drug abstinence, consistent psychological treatment, and family stability during a structured adjournment period were, in combination, sufficient to support an ICO rather than full-time custody, despite the offender's long history of failed leniency.
  • The court reinforced the principle, consistent with Veen v The Queen (No 2), that criminal history operates as a relevant sentencing consideration but does not alone require the maximum or near-maximum available penalty in every subsequent case.
  • Where a court expressly frames an ICO as a "last chance," its conditions are likely to be detailed and strict. Any breach triggers relisting and, as the judgment made plain, risks the immediate substitution of full-time custody.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW): s 60(2) (assault police officer causing actual bodily harm), s 112(1)(a) (break, enter and steal), s 113(1) (break and enter with intent), s 114(1)(b) (possess housebreaking implement), s 154(1)(a) (take and drive conveyance without consent)
- Crimes (Sentencing and Procedure) Act 1999 (NSW): s 5 (threshold for imprisonment), s 11 (adjournment for rehabilitation), s 25D

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- R v Valentini (1989) 46 A Crim R 23
- Veen v The Queen (No 2) (1988) 164 CLR 465