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District Court 8 November 2024

R v Coleman

[2024] NSWDC 658

Assault & violenceDrugsTheft & propertyFirearms & weapons
CRIME SENTENCE AGGRAVATED BREAK, ENTER AND STEAL SPECIAL CIRCUMSTANCES REFERRAL TO DRUG COURT OF NSW.

Citation: R v Coleman [2024] NSWDC 658
Court: District Court of New South Wales
Date: 8 November 2024
Judge: Neilson DCJ

Background

The offender, a 21-year-old man (aged 20 at the time of the offending), appeared for sentence after pleading guilty to four offences committed across two separate incidents in October 2023. The offences ranged from throwing a fire extinguisher and bricks at police vehicles during a pursuit, to breaking into a Hunters Hill home while its occupants slept and stealing a Bentley and other valuables.

The offending spanned 14 October 2023 to 1 November 2023, when the offender was apprehended near the stolen vehicle. Evidence against him included DNA recovered from items thrown at police, CCTV footage, and photographs and video the offender had recorded on his own mobile phone during the offences.

The Crown accepted guilty pleas to all four charges. The sentencing proceedings addressed the objective seriousness of each offence, the offender's personal circumstances including a significant drug dependency, his criminal antecedents, and the question of whether the matter warranted referral to the Drug Court of New South Wales.

  • The appropriate objective seriousness for each of the four offences
  • Whether the offender's youth, drug dependency, and personal circumstances reduced his moral culpability
  • The correct aggregate sentence after accounting for totality, parity with co-offenders, and guilty plea discounts
  • Whether special circumstances existed to justify a non-parole period shorter than the statutory two-thirds ratio
  • Whether the matter was appropriate for referral to the Drug Court of New South Wales for consideration of a compulsory drug treatment order

Decision

Neilson DCJ assessed each offence separately before arriving at an aggregate sentence. For the most serious charge, aggravated break, enter and steal (maximum: 20 years), his Honour assigned an indicative head sentence of three years after a 25% guilty plea discount. The fact that the occupants were asleep in the home at the time elevated the seriousness of this offence.

The charge of using an offensive weapon to prevent lawful apprehension (throwing a fire extinguisher and bricks at pursuing police vehicles) was treated as moderately serious, given the real potential for injury to police or the public, even though no one was actually hurt. His Honour observed that the absence of injury was fortuitous rather than a product of any planning by the offender.

For the dangerous driving charge, the Bentley was recorded travelling at 194 kilometres per hour in a 70 kilometre per hour zone, a margin of 124 kilometres per hour over the limit. The offence of having a face disguised with intent to commit an indictable offence arose from CCTV footage showing the offender wearing a balaclava at a service station in the stolen vehicle shortly after the break-in.

Having regard to totality principles, the indicative head sentences produced a combined term of four years and nine months. The aggregate sentence was fixed at four years' imprisonment, commencing 1 February 2024, with a non-parole period of two years on account of special circumstances, primarily the offender's significant drug dependency and the need for an extended period of supervision on release.

Orders Made

  • Aggregate sentence of four years' imprisonment, commencing 1 February 2024
  • Non-parole period of two years (reduced from the statutory three-year proportion on account of special circumstances)
  • Licence disqualification imposed in connection with the dangerous driving offence
  • The offender referred to the Drug Court of New South Wales to determine whether a compulsory drug treatment order should be made

Key Takeaways

  • The District Court applied the totality principle to arrive at an aggregate sentence of four years, lower than the sum of the individual indicative head sentences of four years and nine months, to avoid a crushing cumulative result.
  • Special circumstances were found to exist, justifying a non-parole period of two years rather than the statutory two-thirds proportion (which would have produced three years), primarily because of the offender's serious drug dependency and the need for extended post-release supervision.
  • A 25% discount on each indicative head sentence was applied across all four charges in recognition of the guilty pleas.
  • Under the compulsory drug treatment regime, a referral to the Drug Court is available where the unexpired non-parole period exceeds 18 months and the unexpired total sentence is less than six years; Neilson DCJ noted that charges classified as crimes of violence may affect eligibility, though his Honour expressed some uncertainty about whether the weapons offence fell into that category.
  • Fortuitous absence of injury does not reduce the objective seriousness of conduct that created substantial risk of harm to police officers and members of the public.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33B(1)(a) (using offensive weapon to prevent lawful apprehension), 112(2) (aggravated break, enter and steal), 114(1)(c) (face disguised with intent to commit indictable offence)
- Road Transport Act 2013 (NSW), s 117(2) (driving recklessly, furiously or at dangerous speed)
- Children (Criminal Proceedings) Act 1987 (NSW), s 15(1)

Cases:
- R v Brewster [1998] 1 Cr App Rep 220
- R v Ponfield (1999) 48 NSWLR 327
- Veen v R (No. 2) (1988) 164 CLR 465