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District Court 23 May 2025

R v Rees

[2025] NSWDC 312

Assault & violenceFraud & dishonestyTheft & property

Citation: R v Rees [2025] NSWDC 312
Court: District Court of New South Wales
Date: 23 May 2025
Judge: Haesler SC DCJ

Background

The offender pleaded guilty in the Local Court to two principal offences: a robbery with wounding on 9 February 2023 (under s 98 of the Crimes Act 1900 (NSW)), and a steal from the person on 22 December 2022 (under s 94(b)). Three related matters were before the District Court on a s 166 certificate under the Criminal Procedure Act 1986 (NSW), and one additional offence was listed on a Form 1.

The s 98 offence involved the offender entering residential premises, assaulting a female complainant and taking her rings, and also taking watches belonging to a male complainant. The s 94(b) offence involved stealing a wallet containing bank cards from a woman's handbag at a Woolworths store; the cards were then used in fraudulent transactions.

The sentencing proceedings were split across two dates. Key factual matters relating to the s 98 offence were contested, requiring the Court to hear evidence from both complainants and from the offender before it could finalise the sentence.

  • Whether disputed factual matters relevant to the s 98 offence had been established to the required standard, and on which party that burden rested
  • How to assess objective seriousness in the absence of resolved facts about the manner of entry and the means by which the injuries were inflicted
  • What weight to give to the offender's subjective circumstances, including significant childhood trauma, chronic drug addiction, mental health conditions, and an extensive history of institutionalisation
  • Whether special circumstances existed justifying a longer than usual parole period
  • How to apply totality principles across the aggregate sentence

Decision

Disputed facts on the robbery with wounding. The Court directed that the Evidence Act 1995 (NSW) applied to the disputed facts hearing. Consistent with Olbrich v The Queen (1999) 199 CLR 270, matters in mitigation required proof on the balance of probabilities, while aggravating matters required proof beyond reasonable doubt. The offender's account was that he had entered the premises to recover money he believed a drug dealer had taken from him, that he was let in voluntarily, and that the violence was reactive rather than premeditated. The complainants said they were woken in bed by an intruder who threatened and struck the female complainant with a golf club. The Court found the CCTV footage was inconsistent with the complainants' account in key respects, particularly the timing and manner of entry. However, the Court also declined to accept the offender's version in full. He had concealed the golf club under his clothing before entry, downplayed the role of a second male who accompanied him, and entered the premises with violent intent.

Finding on the injury. The Court could not resolve whether the female complainant's head injuries were caused by headbutts (as the offender claimed) or by the golf club (as the complainants alleged). The injuries, including a sutured forehead wound, bruising, and a nose injury, were consistent with either cause on the photographic evidence. The Court proceeded to sentence on the facts it could establish with reasonable confidence, noting that both versions depicted the offender as dangerous and intent on violence.

Objective seriousness and subjective factors. The robbery with wounding was assessed as a serious offence. The Court applied the sentencing guideline in R v Henry (1999) 46 NSWLR 346 as a reference point. Significant aggravating factors included a serious criminal record, breach of conditional liberty, commission of the robbery at a residential premises, and acting in company. The Court acknowledged substantial subjective mitigating factors, including severe childhood trauma and abuse, chronic methamphetamine addiction, significant mental health conditions, and a lifetime largely spent in institutions. Applying Bugmy v The Queen (2013) 249 CLR 571, the Court accepted that the offender's deprived background diminished his moral culpability, while also noting it did not eliminate the need for general deterrence. The Court found limited remorse. A 25% discount was applied to each sentence for the utilitarian value of the guilty plea.

Special circumstances. The Court found special circumstances justifying a longer than standard parole period, primarily because of the offender's extensive institutionalisation and his limited capacity to function independently in the community. The parole period of 2 years and 3 months was structured to provide adequate supervision and support on release.

Orders Made

  • Robbery with wounding (s 98): 5 years and 3 months, with a non-parole period of 3 years and 4 months
  • Steal from person (s 94(b)): 1 year and 6 months
  • Common assault (s 166 certificate): 4 months
  • Successful frauds (s 166 certificate): 3 months
  • Attempted fraud (s 166 certificate): 1 month
  • Aggregate sentence: 6 years and 2 months, with a non-parole period of 4 years
  • Sentence to commence 13 April 2023; eligible for parole consideration from 12 April 2027; total sentence to expire 12 June 2029
  • Form 1 offence taken into account

Key Takeaways

  • Where disputed sentencing facts cannot be resolved, the District Court here proceeded on what could be established, neither treating unproven aggravating matters as proved nor accepting unsatisfactory exculpatory accounts in full, consistent with the approach in Olbrich.
  • CCTV evidence played a decisive role: the footage was found to be inconsistent with the complainants' account in material respects, which meant the Court could not accept their version wholesale, even though it also declined to accept the offender's.
  • A lifetime of institutionalisation was treated as a specific basis for finding special circumstances, because the offender had had no meaningful opportunity to develop the skills required to live independently in the community.
  • Under Bugmy, the Court confirmed that severe childhood deprivation and chronic drug addiction can reduce moral culpability, but that consideration does not displace the need for general deterrence where offences involve serious violence against victims in their home.
  • Totality principles governed the construction of the aggregate sentence, and the 25% guilty plea discount was applied with care to ensure the benefit was not eroded through accumulation of terms.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 94(b), 98
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW), ss 166, 37
- Evidence Act 1995 (NSW), s 4(2)(b)

Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2013] NSWCCA 115; (2002) 56 NSWLR 146
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- Jackson v R [2010] NSWCCA 162
- Jinnette v R [2012] NSWCCA 217
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
- Olbrich v The Queen [1999] HCA 5; (1999) 199 CLR 270
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
- R v Herring (1956) 73 WN (NSW) 203
- R v Holder; R v Johnston [1983] 3 NSWLR 245
- R v Legge [2007] NSWCCA 244
- R v Rees [2019] NSWDC 681
- R v Windle [2012] NSWCCA 222
- Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267
- *Veen v The Queen (No 2