R v Auld, Darryl - [2017] NSWDC 316

District Court

New South Wales

Medium Neutral Citation: R v AULD, Darryl [2017] NSWDC 316
Hearing dates: 23 August 2017
Date of orders: 23 August 2017
Decision date: 23 August 2017
Jurisdiction: Criminal
Before: Judge S Norrish QC
Decision:
Referred to Community Corrections for the preparation of an ICO Assessment Report. For orders see [33]

Catchwords: CRIMINAL – SENTENCE – aggravated break and enter and committing serious indictable offence – intimidation – armed with a steak knife and lunged at an occupant of the home – breaking into private home – the offender knew the occupants of the home – offender intoxicated – lengthy criminal history – history of alcohol abuse – has a full-time employment position arranged – remorse noted – full discount for the utilitarian benefit of the plea of guilty.
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: R v Thomson and Houlton [2000] NSWCCA 309
R v Borkowski [2009] NSWCCA 102
R v Way (2004) 60 NSWLR 168
Muldrock v R (2011) 244 CLR 120
Yardley v Betts (1979) 22 SASR 108
R v Blackman and Walters [2001] NSWCCA 121
Category: Sentence
Parties: Regina (Crown)
Darryl Auld (Offender)
Representation: Counsel:
Ms Turner (DPP Solicitor)
Mr Khan (Counsel)

File Number(s): 2016/00308184
Publication restriction: Nil

SENTENCE

HIS HONOUR: Darryl Auld appears today for sentence in relation to a matter for which he was committed for sentence from the Broken Hill Local Court on 28 February 2017. The offence is an offence of aggravated breaking entering and committing serious indictable offence. The aggravation I will explain in a moment, the serious indictable offence is intimidation. This is an offence contrary to s 112(2) of the Crimes Act 1900, it carries a maximum penalty of 20 years and has a standard non-parole period of five years imprisonment. There are no offences on a Form 1, there are no related charges to be dealt with, the prisoner did not commit the offence whilst subject to conditional liberty.
The offence in question was an offence committed on 16 October 2016. Having pleaded guilty in late February, the last day of February in fact in 2017, I accept that the prisoner entered his plea of guilty at the first reasonable opportunity and shall receive a discount of 25% upon the otherwise appropriate sentence for this offending. In that regard I am applying a discount for the utilitarian benefit of the plea in accordance with the guideline judgment from 1999 of Thomson and Houlton [2000] NSWCCA 309, also reported at 49 NSWLR 383. In 2009 Justice Howie shortly before his retirement in the decision of Borkowski [2009] NSWCCA 102 summarised the relevant principles that played from Thomson and Houlton and subsequent cases concerning the utilitarian value of the plea of guilty and how it was to be assessed at [32] of that judgment.
The crime that the offender committed, particularised, is that the offender in the early hours of 16 October 2016 did break and enter…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Auld, Darryl

Details

AGLC: R v Auld, Darryl [2017] NSWDC 316
Case: [2017] NSWDC 316
Decision Date: 23 August 2017

CaseChat Overview and Summary

The appellant, Darryl Auld, was charged with aggravated break and enter and committing a serious indictable offence. He broke into a private home, armed with a steak knife, and lunged at an occupant, causing them to fear for their safety. The offender, who was intoxicated and had a history of alcohol abuse, knew the occupants of the home. Auld had a lengthy criminal history and had a full-time employment position arranged. The court noted that the offender expressed remorse for his actions. The legal issues that arose in this case were whether the mitigating factors, including the offender's employment, history of alcohol abuse, and remorse, should be considered in sentencing and whether the offender's intoxication should be considered as a mitigating factor.

The court considered the arguments presented by both parties and ultimately determined that the offender's intoxication should not be considered a mitigating factor in sentencing. The court found that the offender's history of alcohol abuse and employment were relevant mitigating factors. The court also noted that the offender's remorse was a significant mitigating factor, and a full discount for the utilitarian benefit of the plea of guilty was appropriate. The court found that the offender's criminal history and the nature of the offence warranted a sentence of imprisonment. However, the court considered the offender's employment and history of alcohol abuse as mitigating factors and determined that a community-based order would be appropriate.

The court ordered that the offender be referred to Community Corrections for the preparation of an ICO Assessment Report. The court determined that a community-based order would be appropriate, taking into account the offender's employment and history of alcohol abuse. The court considered the offender's lengthy criminal history and the nature of the offence but determined that a sentence of imprisonment was not necessary. The court considered the offender's remorse and the full discount for the utilitarian benefit of the plea of guilty and determined that a community-based order would be appropriate. The final orders of the court are set out in [33].

Orders

Orders of the court

Referred to Community Corrections for the preparation of an ICO Assessment Report. For orders see [33]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v AULD, Darryl [2017] NSWDC 316
Hearing dates:	23 August 2017
Date of orders:	23 August 2017
Decision date:	23 August 2017
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Referred to Community Corrections for the preparation of an ICO Assessment Report. For orders see [33]
Catchwords:	CRIMINAL – SENTENCE – aggravated break and enter and committing serious indictable offence – intimidation – armed with a steak knife and lunged at an occupant of the home – breaking into private home – the offender knew the occupants of the home – offender intoxicated – lengthy criminal history – history of alcohol abuse – has a full-time employment position arranged – remorse noted – full discount for the utilitarian benefit of the plea of guilty.
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	R v Thomson and Houlton [2000] NSWCCA 309 R v Borkowski [2009] NSWCCA 102 R v Way (2004) 60 NSWLR 168 Muldrock v R (2011) 244 CLR 120 Yardley v Betts (1979) 22 SASR 108 R v Blackman and Walters [2001] NSWCCA 121
Category:	Sentence
Parties:	Regina (Crown) Darryl Auld (Offender)
Representation:	Counsel: Ms Turner (DPP Solicitor) Mr Khan (Counsel)
File Number(s):	2016/00308184
Publication restriction:	Nil