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R v Bottom

R v Bottom

Case [2019] NSWDC 828 20 November 2019

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District Court

New South Wales

Medium Neutral Citation: R v Bottom [2019] NSWDC 828
Hearing dates: 20 November 2019
Decision date: 20 November 2019
Jurisdiction: Criminal
Before: Norrish QC DCJ
Decision:
Sentenced to an aggregate sentence of nine years imprisonment; non-parole period of four years and eleven months

Catchwords: CRIME – Sentence – break enter and steal – drive in manner dangerous knowing police in pursuit; being required to stop vehicle and not stopping – steal firearms in company – stealing and firearms/ammunition offences on Forms 1 – ADVO and drive whilst disqualified offences on s 166 – offender on conditional liberty at time of offending - totality – relevance of non-parole period - methylamphetamine dependency – planned offending not impulsive – significant criminal history – no history of mental illness or conduct disorder – regular employment until death of child and breakdown of relationship – depression – special circumstances – contrition.
Legislation Cited: Crimes Act 1900
Crimes Act (Sentencing Procedure) Act 1999.
Firearms Act 1996
Cases Cited: Attorney General's Application No 1 (2002) 56 NSWLR 147
Jimmy v R [2010] NSWCCA 60
Markarian v R [2005] HCA 25; (2005) 228 CLR 357
Muldrock v R [2011] HCA 39; 244 CLR 120
Pearce v R (1998) 194 CLR 610
R v Holder [1983] 3 NSWLR 245,
R v Johnson [2004] NSWCCA 341
R v Mill [1988] 166 CLR 59
R v Ponfield (1999) 48 NSWLR 327
R v XX (2009) 195 A Crim R 38
Tepania v R [2018] NSWCCA 247
Veen v R (No 2) [1988] HCA 14; 164 CLR 465
Wong v R (2001) 207 CLR 584
Category: Sentence
Parties: Regina (Crown)
Thomas Wayne Bottom (offender)
Representation:
Counsel:
Mr D Roff (offender)
Solicitors:
Mr A Meredith (Crown)

File Number(s): 2019/00090034
Publication restriction: No

Judgment

Thomas Wayne Bottom appears today for sentence in relation to six offences, which I will call the principal offences. He also is required to be sentenced in respect of six matters on a s 166 certificate. In respect of two of the principal offences I am required to take into account, in respect of one of those offences nine matters on a Form 1 and in respect of the other, two matters on a Form 1. Originally the Crown presented the material with all the matters on the one Form 1. However, identifying two principal offences, I was not sure that the Act permitted that to be so. There is thus to be considered a considerable amount of criminality involved in the offences with which I am concerned. Offences not committed over a few days or a few weeks, but committed between early August and mid to late December 2018.
The prisoner has pleaded guilty to two offences of breaking, entering and stealing committed at the same residence. That is the residence of Mr Andrew McDonald. I need not read the details of it onto the record. These offences are contrary to s 112(1)(a) Crimes Act1900. Each carries…

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 Bottom

Details

AGLC: R v Bottom [2019] NSWDC 828
Case: [2019] NSWDC 828
Decision Date: 20 November 2019

CaseChat Overview and Summary

The accused, Bottom, was convicted for multiple offences, including breaking and entering, stealing firearms, and driving dangerously while evading police. The case was heard in the Supreme Court of Queensland. Bottom, who was already on conditional liberty for a previous conviction, committed the offences in a deliberate and planned manner, driven by his dependency on methylamphetamine. The court was required to decide the appropriate sentence, taking into consideration the totality of the offences, the offender's criminal history, and the special circumstances of his life, including his employment, the death of his child, and his breakdown in personal relationships.

The court considered the significance of Bottom's criminal history, his dependency on methylamphetamine, and the fact that the offences were planned rather than impulsive. It also noted that while Bottom had no history of mental illness or conduct disorder, he had suffered from depression. The court found that the non-parole period should reflect the seriousness of the offences and the need for general deterrence, while also considering the potential for rehabilitation. The court ultimately determined that an aggregate sentence of nine years imprisonment, with a non-parole period of four years and eleven months, was appropriate.

The court emphasised the need for general deterrence given the gravity of the offences and Bottom's significant criminal history. It acknowledged the offender's remorse and his efforts towards rehabilitation, but found these factors to be insufficient to warrant a more lenient sentence. The court also noted that the non-parole period was not to be determined solely on the basis of the non-parole periods recommended on the Forms 1. The final orders of the court were that Bottom be sentenced to an aggregate sentence of nine years imprisonment, with a non-parole period of four years and eleven months.

Orders

Orders of the court

Sentenced to an aggregate sentence of nine years imprisonment; non-parole period of four years and eleven months

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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Citations

AGLC Citation

R v Bottom [2019] NSWDC 828

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 12 of 12 shown

R v Holder
[2019] SASCFC 73 Para 17

…of principles enunciated in a range of cases primarily of the High Court and the Court of Criminal Appeal. Street CJ in the decision of Holder [1983] 3 NSWLR 245, particularly at [260], cited the practicalities of considering the concept of ‘totality of sentencing’. His observations being adopted by the majori…
Tepania v The Queen
[2018] NSWCCA 247 Para 27

…reflect the decision of the High Court from 2010 or 2011 of Muldrock , which I need not cite. A particular decision I refer to is Tepania v The Queen [2018] NSWCCA 247, particularly at [112] where Johnson J said, inter alia:…
Muldrock v The Queen
[2011] HCA 39

…cation No 1 (2002) 56 NSWLR 147 Jimmy v R [2010] NSWCCA 60 Markarian v R [2005] HCA 25; (2005) 228 CLR 357 Muldrock v R [2011] HCA 39; 244 CLR 120 Pearce v R (1998) 194 CLR 610 R v Holder [1983] 3 NSWLR 245, R v Johnson [2004] NSWCCA 341 R v Mill [1988] 166 CLR 59 R v Ponfield (1999) 48 NSWLR 327 R v XX (2009) 1…
Jimmy v R
[2010] NSWCCA 60 Para 12

…o parity of sentencing, again not a matter argued before me, it is to be borne in mind, as Rothman J pointed out in the decision of Jimmy v The Queen [2010] NSWCCA 60, particularly at [254]-[255], parity in sentencing is an aspect of ‘equal justice’. Equal justice requires that like should treated alike and the dif…
Markarian v The Queen
[2005] HCA 25

…Act 1996 Cases Cited: Attorney General's Application No 1 (2002) 56 NSWLR 147 Jimmy v R [2010] NSWCCA 60 Markarian v R [2005] HCA 25; (2005) 228 CLR 357 Muldrock v R [2011] HCA 39; 244 CLR 120 Pearce v R (1998) 194 CLR 610 R v Holder [1983] 3 NSWLR 245, R v Johnson [2004] NSWCCA 341 R v Mill [1988] 166 CLR 59 R…
Regina v Johnson
[2004] NSWCCA 341

…LR 357 Muldrock v R [2011] HCA 39; 244 CLR 120 Pearce v R (1998) 194 CLR 610 R v Holder [1983] 3 NSWLR 245, R v Johnson [2004] NSWCCA 341 R v Mill [1988] 166 CLR 59 R v Ponfield (1999) 48 NSWLR 327 R v XX (2009) 195 A Crim R 38 Tepania v R [2018] NSWCCA 247 Veen v R (No 2) [1988] HCA 14; 164 CLR 465 Wong v R (2001)…
Re Attorney-General's Application (No 1 of 2002) (NSW)
[2002] NSWCCA 518 Para 19

…The Court of Criminal Appeal in Attorney General's Application No 1 of 2002 (2002) 56 NSWLR 147, particularly at [18]-[44], discussed a number of principles that needed to be considered in sentencing an offender for a principal offence, taking into account matters on a Form 1. They referred to the operation of the Act…
Wong v The Queen
[2001] HCA 64

…WLR 327 R v XX (2009) 195 A Crim R 38 Tepania v R [2018] NSWCCA 247 Veen v R (No 2) [1988] HCA 14; 164 CLR 465 Wong v R (2001) 207 CLR 584 Category: Sentence Parties: Regina (Crown) Thomas Wayne Bottom (offender) Representation: Counsel: Mr D Roff (offender) Solicitors: Mr A Meredith (Crown) File Number(s): 2019/0009…
R v Ponfield
[1999] NSWCCA 435 Para 19

…ment, there is a breaking and entering and stealing matter on one of the Forms 1. I bear in mind what was said by Grove J in the decision of Ponfield (1999) 48 NSWLR 327 as to these types of offences. There his Honour, in his usual wise and concise fashion, identified relevant factors in sentencing people for breaking…
Pearce v The Queen
[1998] HCA 57 Para 14

…te a large number of issues that arise, both out of legislation and the case law. As the High Court pointed out in the decision of Pearce v The Queen (1998) 194 CLR 610, particularly at [39], [42] and [46], the sentencing of offenders and the determination of whether sentences should be concurrent or accumulative or…
Mill v The Queen
[1988] HCA 70

…244 CLR 120 Pearce v R (1998) 194 CLR 610 R v Holder [1983] 3 NSWLR 245, R v Johnson [2004] NSWCCA 341 R v Mill [1988] 166 CLR 59 R v Ponfield (1999) 48 NSWLR 327 R v XX (2009) 195 A Crim R 38 Tepania v R [2018] NSWCCA 247 Veen v R (No 2) [1988] HCA 14; 164 CLR 465 Wong v R (2001) 207 CLR 584 Category: Sente…
Veen v The Queen (No 2)
[1988] HCA 14

…166 CLR 59 R v Ponfield (1999) 48 NSWLR 327 R v XX (2009) 195 A Crim R 38 Tepania v R [2018] NSWCCA 247 Veen v R (No 2) [1988] HCA 14; 164 CLR 465 Wong v R (2001) 207 CLR 584 Category: Sentence Parties: Regina (Crown) Thomas Wayne Bottom (offender) Representation: Counsel: Mr D Roff (offender) Solicitors: Mr A M…

Legislation cited in this decision · 4

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 47)
Crimes Act (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 9)
Crimes Act 1900 (ACT)
1 mention (from Para 2)
Firearms Act 1996 (TAS)
1 mention (from Para 4)

Medium Neutral Citation:	R v Bottom [2019] NSWDC 828
Hearing dates:	20 November 2019
Decision date:	20 November 2019
Jurisdiction:	Criminal
Before:	Norrish QC DCJ
Decision:	Sentenced to an aggregate sentence of nine years imprisonment; non-parole period of four years and eleven months
Catchwords:	CRIME – Sentence – break enter and steal – drive in manner dangerous knowing police in pursuit; being required to stop vehicle and not stopping – steal firearms in company – stealing and firearms/ammunition offences on Forms 1 – ADVO and drive whilst disqualified offences on s 166 – offender on conditional liberty at time of offending - totality – relevance of non-parole period - methylamphetamine dependency – planned offending not impulsive – significant criminal history – no history of mental illness or conduct disorder – regular employment until death of child and breakdown of relationship – depression – special circumstances – contrition.
Legislation Cited:	Crimes Act 1900 Crimes Act (Sentencing Procedure) Act 1999. Firearms Act 1996
Cases Cited:	Attorney General's Application No 1 (2002) 56 NSWLR 147 Jimmy v R [2010] NSWCCA 60 Markarian v R [2005] HCA 25; (2005) 228 CLR 357 Muldrock v R [2011] HCA 39; 244 CLR 120 Pearce v R (1998) 194 CLR 610 R v Holder [1983] 3 NSWLR 245, R v Johnson [2004] NSWCCA 341 R v Mill [1988] 166 CLR 59 R v Ponfield (1999) 48 NSWLR 327 R v XX (2009) 195 A Crim R 38 Tepania v R [2018] NSWCCA 247 Veen v R (No 2) [1988] HCA 14; 164 CLR 465 Wong v R (2001) 207 CLR 584
Category:	Sentence
Parties:	Regina (Crown) Thomas Wayne Bottom (offender)
Representation:	Counsel: Mr D Roff (offender) Solicitors: Mr A Meredith (Crown)
File Number(s):	2019/00090034
Publication restriction:	No