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District Court 16 December 2024

R v SLD (No 4)

[2024] NSWDC 594

Public order & justice offences
CRIME SENTENCE HIGH RISK OFFENDER VERDICT FOLLOWING JUDGE ALONE TRIAL

Citation: R v SLD (No 4) [2024] NSWDC 594
Court: District Court of New South Wales
Date: 16 December 2024
Judge: Fitzsimmons SC DCJ

Background

The offender, a classified high-risk offender, was subject to an extended supervision order (ESO) made by the Supreme Court. That order included a strict non-association condition prohibiting contact with children. The ESO had been imposed on the basis that the offender posed an unacceptable risk of committing a serious violence offence and a high risk of committing a serious sexual offence.

During a visit to Bulli beach, the offender engaged in a brief conversation with a child's mother while the child was present. Although the offender did not directly interact with the child, the subject of the conversation was the child. The offender then promptly left the area when the mother mentioned the child's father.

Following a judge-alone trial, the offender was found guilty of one count of failing to comply with an ESO under s 12 of the Crimes (High Risk Offenders) Act 2006. He was acquitted on two remaining counts arising from the same proceedings. This decision concerns sentencing for the single proven offence.

  • What was the objective seriousness of the breach, and did it materially elevate the risk of the offender committing a further serious offence?
  • What weight should be given to the offender's prior criminal history, including earlier ESO breaches, as an aggravating factor?
  • To what extent did the offender's deeply disadvantaged background reduce his moral culpability under Bugmy v The Queen?
  • Whether a sentence of full-time imprisonment or an intensive correction order (ICO) was appropriate, having regard to the paramount consideration of community safety.
  • How should the period spent in pre-sentence custody be calculated, given an intervening period where the offender was bail-refused on charges of which he was ultimately acquitted?

Decision

Objective seriousness: Fitzsimmons SC DCJ found the offence fell towards the lower end of the range of objective seriousness. The interaction was brief, occurred in a public place during the day, and involved no direct contact with the child. The court was not satisfied that the breach materially elevated the risk of the offender committing a further serious violent or sexual offence, applying Monteiro v R [2022] NSWCCA 37. However, the court acknowledged that the non-association condition exists precisely because even indirect association with a child can initiate the commission of a serious offence.

Criminal history and aggravation: The offender's prior history included a conviction for murder (the predicate offence for the ESO), offences of violence against law enforcement officers, and three earlier ESO breaches committed only months before this offence, for which he received a community correction order. The court accepted that the prior ESO breaches did not technically constitute a statutory aggravating circumstance under s 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999, but they disentitled the offender to any leniency that would otherwise apply to a first-time offender. The fact that this offence occurred within a month of the earlier community correction orders being made was treated as significant. The offender's status on conditional liberty at the time was accepted as a statutory aggravating factor under s 21A(2)(j).

Subjective circumstances and moral culpability: The court applied Bugmy v The Queen (2013) 249 CLR 571, finding that the offender's profoundly disadvantaged early life, including prenatal drug exposure, a history of abuse and neglect, removal into state care, corporal punishment in foster care, and alleged sexual abuse, warranted a partial reduction in moral culpability. However, consistent with the High Court's observations in Bugmy, the sentencing judge noted that the offender's entrenched personality disorder and its ongoing manifestation in his behaviour could not be ignored.

Full-time custody: The court declined to impose an ICO. Applying the framework from DC v R [2023] NSWCCA 82 and Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3, the court was overwhelmingly satisfied that full-time detention was more likely to address the offender's risk of reoffending and met the paramount consideration of community safety, particularly given his previous convictions for breaching supervision orders and his attitude towards those orders. On the question of pre-sentence custody, the court rejected the Crown's submission that time should be discounted for a bail-refusal period related to separate charges. The offender had been in continuous custody since arrest for this offence, and the sentence was backdated accordingly.

Orders Made

  • Sentence of imprisonment of 1 year and 6 months, commencing 24 October 2023 and expiring 23 April 2025.
  • Non-parole period of 1 year and 1 month, commencing 24 October 2023 and expiring 23 November 2024.
  • By operation of s 158 of the Crimes (Administration of Sentences) Act 1999, the offender was subject to a statutory parole order directing release at the expiry of the non-parole period (23 November 2024), entitling the offender to immediate release on parole.

Key Takeaways

  • A breach of an extended supervision order's non-association condition can fall towards the lower end of objective seriousness where the interaction was brief, indirect, occurred in a public setting, and did not materially elevate the risk of further serious offending, applying Monteiro v R.
  • Prior breaches of an extended supervision order may not constitute a statutory aggravating factor under s 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999, but they nonetheless disentitle an offender to any leniency otherwise available on account of limited criminal history.
  • Under Bugmy v The Queen, severe childhood disadvantage can reduce moral culpability at sentencing, but a sentencing court is not required to disregard the ongoing effects of an entrenched personality disorder on an offender's conduct and risk profile.
  • Where an offender has a demonstrated pattern of breaching supervision conditions and an ongoing adverse attitude toward those conditions, the District Court found that full-time custody, rather than an intensive correction order, was overwhelmingly required to address reoffending risk and protect community safety.
  • Pre-sentence custody is calculated from the date of arrest for the relevant offence; an intervening bail-refusal period on separate charges of which the offender was ultimately acquitted did not alter that calculation in this case.

Legislation and Cases Referenced

Legislation
- Crimes (High Risk Offenders) Act 2006 (NSW), s 12
- Crimes (Administration of Sentences) Act 1999 (NSW), s 158
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3, 21A(2)(d), 21A(2)(j), 66

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- DC v R [2023] NSWCCA 82
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- Droudis v R (2020) 103 NSWLR 806; [2020] NSWCCA 322
- Monteiro v R [2022] NSWCCA 37
- Muldrock v R (2011) 244 CLR 120
- R v SLD (No 3) [2024] NSWDC 480
- Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3
- State of New South Wales v SLD (Final) [2023] NSWSC 978