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District Court 8 November 2024

R v Wood

[2024] NSWDC 529

Assault & violenceTheft & propertyTraffic & drivingFirearms & weaponsPublic order & justice offences
CRIME SENTENCE POLICE PURSUIT NOT STOP DRIVE DANGEROUSLY SECOND PLUS OFFENCE

Citation: R v Wood [2024] NSWDC 529
Court: District Court of New South Wales
Date: 8 November 2024
Judge: Colefax SC DCJ

Background

The offender, a 30-year-old man who was on parole at the time, was sentenced for four offences arising from a series of connected events in late October 2022. The offences included the carjacking of a vehicle using a taser, participating as the driver in a drive-by shooting at a residential dwelling, fleeing police in a dangerous pursuit, and driving while disqualified.

In the days before the shooting, the offender had been present at a meeting where a firearm was produced and had volunteered to act as the getaway driver. On the night of 25-26 October 2022, a co-offender used a taser to violently remove a man from his own vehicle while the offender stood nearby. The offender then drove the stolen vehicle to a residential street in Merrylands, where his co-offender fired two shots at a house. A newborn baby and the baby's mother were sleeping in the room struck by one of the projectiles.

Following the shooting, police spotted the vehicle and a dangerous high-speed pursuit ensued before the offender and his co-offender abandoned the car. He was arrested on 21 December 2022 and has been held in custody since that date.

  • What are the appropriate indicative sentences for each of the four offences, taking into account early pleas of guilty, the offender's personal circumstances, and his role in a joint criminal enterprise?
  • Does parity with the sentence imposed on the co-offender (Mr Phillips) affect the appropriate sentence?
  • Do special circumstances exist to justify varying the standard ratio between the non-parole period and the head sentence?
  • How should the principle of totality operate across the four offences to produce an appropriate aggregate sentence?

Decision

His Honour applied a 25 per cent discount to each indicative sentence in recognition of the offender's early pleas of guilty. The most serious offence, firing a firearm at a dwelling (sequence 4), attracted an indicative sentence of 5 years 3 months, with an indicative non-parole period of 2 years 10 months. The offender's criminal liability for both the carjacking and the shooting was established on the basis of joint criminal enterprise, even though he was not the person who wielded the taser or fired the weapon.

The Court noted a degree of parity complexity. In the offender's proceedings, it was agreed that co-offender Phillips was the shooter. That same fact was not agreed in Phillips's own sentencing proceedings, meaning the starting points for the two sentences were not identical. His Honour indicated that he had not speculated adversely to the offender's interests about matters not disclosed in the agreed facts, such as who orchestrated the broader plan.

His Honour found special circumstances warranting a departure from the standard non-parole period ratio. The offender's psychological conditions made imprisonment more burdensome than it would otherwise be, and an extended period on parole was considered likely to assist rehabilitation.

Applying the totality principle (which requires the court to ensure that the combined effect of multiple sentences is not disproportionate to the overall criminality), his Honour imposed an aggregate sentence of 6 years 6 months, backdated as an act of deliberate leniency to the date of arrest. The non-parole period was fixed at 3 years 6 months, expiring on 20 June 2026, with a balance of term expiring on 20 June 2029.

Orders Made

  • Aggregate term of imprisonment of 6 years 6 months, commencing 21 December 2022.
  • Non-parole period of 3 years 6 months, expiring 20 June 2026.
  • Balance of term of 3 years, commencing 21 June 2026 and expiring 20 June 2029.
  • Driving disqualification of 2 years in respect of sequences 5 and 6, to run from the date of admission to parole or, if not admitted, from the date of release from custody.
  • The reports of Dr Brann (dated 1 June 2022) and Dr McSwiggan (dated 22 April and 21 August 2024) ordered to accompany the warrant.

Key Takeaways

  • Joint criminal enterprise liability applied to both the carjacking and the drive-by shooting, even where the offender was not the person who physically committed the most serious act in each incident.
  • A 25 per cent discount on indicative sentences was applied across all four counts in recognition of early guilty pleas.
  • Special circumstances were established on two independent grounds: the offender's psychological conditions making custody more onerous, and the benefit a longer parole period would provide to prospects of rehabilitation.
  • Parity between co-offenders can be complicated where agreed facts differ across separate sentencing proceedings; the District Court here identified and accounted for that distinction rather than applying a mechanical comparison.
  • The backdating of the sentence commencement date to the date of arrest was described by the sentencing judge as a deliberate act of leniency, reflecting the court's discretion in structuring the overall sentencing outcome.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 93GA(1), 51B(1), 154C(2)
- Road Transport Act 2013 (NSW), s 54(1)(a)

Cases:
- Bugmy v R [2013] 249 CLR 571
- DPP (C'th) v De La Rosa (2010) 79 NSWLR 1
- R v Phillips [2024] NSWDC 293