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R v Colvin (No 2)

R v Colvin (No 2)

Case [2021] NSWDC 494 20 September 2021

Aggravated Break Enter and Commit Indictable Offence Intimidation

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Colvin (No 2) [2021] NSWDC 494
Hearing dates: 13 August 2021
Decision date: 20 September 2021
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Aggregate sentence of 3 years 2 months with a non-parole period of 2 years

Catchwords:
CRIME — Aggravated Break Enter and Commit Indictable Offence Intimidation — Common Assault — Destroy or Damage Property
SENTENCING — Relevant factors on sentence — Sentence after judge alone trial — Domestic violence related — Breach of parole — Institutionalised — Long history of offending — Childhood deprivation and abuse — Mental illness — Accumulation and totality — Assistance with the course of justice during the pandemic — Contracts COVID-19 while in custody — Other impacts of COVID-19 considered
Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes (Administration of Sentences) Act 1999 (NSW)
Criminal Procedure Act 1986 (NSW)

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571
Chenhall v R [2021] VSCA 175
Courtney v R [2007] NSWCCA 195; (2007) 172 A Crim R 371
DPP v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
Droudis v R [2020] NSWCCA 322
Engert v R (1995) 84 A Crim R 67
Jinnette v R [2012] NSWCCA 217
R v Colvin [2021] NSWDC 390
R v Hemsley [2004] NSWCCA 228
R v Henry [1999] NSWCCA 111; 46 NSWLR 346
R v Israil [2002] NSWCCA 255
R v McNaughton (2006) 66 NSWLR 566
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
Worboyes v R [2021] VSCA 169

Category: Sentence
Parties: Jason Keith Colvin (the offender)
Public Prosecutions (NSW) (Crown)
Representation: Solicitors:
Ms E Parkes, Solicitor Advocate, Legal Aid NSW (for the offender)
Ms A Hughes, Solicitor Advocate (for Director of Public Prosecutions)

File Number(s): 2020/00229157

sentence

Introduction

On 11 August 2021, after a judge alone trial, I convicted Jason Keith Colvin of the offence of Breaking and Entering the home of his sister and committing the serious offence of Intimidation, in the Circumstance of Aggravation that he Knew Others to be There: Crimes Act (NSW) 1900, s 112(2); R v Colvin [2021] NSWDC 390. The offence has a maximum penalty of 20 years imprisonment. There is a standard non-parole period of 5 years. The standard non-parole period represents the non-parole period for an offence “that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness”: Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A(2).
After the trial I also convicted Colvin of two related offences that came to the Court on a s 166 Criminal Procedure Act 1986 (NSW) certificate:

Common Assault: Crimes Act 1900, s 61, maximum penalty 2 years imprisonment.

Destroy or Damage Property: Crimes Act 1900, s 195(1)(a), maximum penalty 5 years imprisonment.

I heard sentencing submissions on 13 August 2021 but there was no time left…

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 Colvin (No 2)

Details

AGLC: R v Colvin (No 2) [2021] NSWDC 494
Case: [2021] NSWDC 494
Decision Date: 20 September 2021

CaseChat Overview and Summary

The case of R v Colvin (No 2) involved the defendant, Colvin, who was convicted of aggravated break enter and commit indictable offence, intimidation, common assault, and destruction or damage to property. The case was heard in a court of criminal jurisdiction in Australia. Colvin had a history of offending, including domestic violence, and had breached parole. He had also been institutionalised and suffered from childhood deprivation, abuse, and mental illness. The court was required to determine an appropriate sentence for Colvin, taking into account various relevant factors, including the impact of COVID-19 on the sentencing process and Colvin's health.

The legal issues the court had to decide included the appropriate weight to give to Colvin's history of offending, his mental health, and the impact of COVID-19 on his sentence. The court also had to consider the totality principle in sentencing, which requires the court to consider the cumulative effect of multiple offences and the need for deterrence and rehabilitation. Additionally, the court had to balance the need for punishment with the need for rehabilitation, taking into account Colvin's background and the impact of COVID-19 on his life.

The court found that Colvin's history of offending, including domestic violence, and his breach of parole, were significant aggravating factors. However, the court also took into account Colvin's childhood deprivation and abuse, his mental illness, and the impact of COVID-19 on his life. The court found that Colvin had shown some assistance with the course of justice during the pandemic and had contracted COVID-19 while in custody. The court also considered the impact of COVID-19 on Colvin's mental health and the difficulty of accessing rehabilitation services during the pandemic. Ultimately, the court determined that an aggregate sentence of 3 years and 2 months, with a non-parole period of 2 years, was appropriate.

The court ordered that Colvin be sentenced to an aggregate term of 3 years and 2 months imprisonment, with a non-parole period of 2 years. The court considered Colvin's history of offending, his mental health, and the impact of COVID-19 on his life in determining the appropriate sentence. The court found that the totality principle required a sentence that reflected the cumulative effect of Colvin's multiple offences, while also taking into account the need for deterrence and rehabilitation. The court also considered the need to balance punishment with rehabilitation, and found that the appropriate sentence was one that reflected Colvin's background and the impact of COVID-19 on his life.

Orders

Orders of the court

Aggregate sentence of 3 years 2 months with a non-parole period of 2 years

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 Colvin (No 2) [2021] NSWDC 494

Most Recent Citation

R v Levvell [2021] NSWDC 518

Cases citing this decision · 3 of 3 shown

R v Colvin
[2024] NSWDC 281 Para 1

…convicted and then sentenced Jason Colvin for offences committed against his sister in her home: R v Colvin (No1) [2021] NSWDC 390; R v Colvin (No 2) [2021] NSWDC 494. When I sentenced him, I took into account; his history of childhood deprivation, the fact that police had taken action against those who sexually ab…
R v Sultan
[2021] NSWDC 776

…ns (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Lowe v R (1984) 154 CLR 606 Postiglione v R (1997) 189 CLR 294 R v Colvin (No 2) [2021] NSWDC 494 R v Davies [2004] NSWCCA 310 R v Henry (1999) 46 NSWLR 346 R v Jones [2021] NSWDC 478 R v Masters (1992) 26 NSWLR 450 R v Murchie (1999) 108 A Crim R 482 R v N…
R v Levvell
[2021] NSWDC 518 Para 45

…e negatively impacted by COVID-19 restrictions in custody. I have already sentenced a prisoner who caught COVID-19 in Parklea Gaol: R v Colvin (No 2) [2021] NSWDC 494. Another example is Mbele v R [2021] NSWCCA 182 , where it was noted that employment and access to psychologists and psychiatrists has ceased due to…

View all 3 citing cases →

Cases cited in this decision · 13 of 13 shown

R v Colvin
[2021] NSWDC 390 Para 1

…the serious offence of Intimidation, in the Circumstance of Aggravation that he Knew Others to be There: Crimes Act (NSW) 1900 , s 112(2); R v Colvin [2021] NSWDC 390. The offence has a maximum penalty of 20 years imprisonment. There is a standard non-parole period of 5 years. The standard non-parole period represe…
Chenhall v The Queen
[2021] VSCA 175

…tences) Act 1999 (NSW) Criminal Procedure Act 1986 (NSW) Cases Cited: Bugmy v The Queen (2013) 249 CLR 571 Chenhall v R [2021] VSCA 175 Courtney v R [2007] NSWCCA 195; (2007) 172 A Crim R 371 DPP v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 Droudis v R [2020] NSWCCA 322 Engert v R (1995) 84 A Crim R 67 Jinnet…
Worboyes v The Queen
[2021] VSCA 169 Para 17

…and amelioration of sentence than cooperation at a time when the community and the courts are not affected by the pandemic’s effects: Worboyes v R [2021] VSCA 169 ; Chenhall v R 2021] VSCA 175. While not necessary, it is preferable to nominate a numerical discount for this factor: Droudis v R [2020] NSWCCA 322 at…
Droudis v R
[2020] NSWCCA 322 Para 17

…[2021] VSCA 169 ; Chenhall v R 2021] VSCA 175. While not necessary, it is preferable to nominate a numerical discount for this factor: Droudis v R [2020] NSWCCA 322 at [104]-[105]. I propose to reduce the sentence by 5% in accordance with s 22A.…
Bugmy v The Queen
[2013] HCA 37 Para 27

…rt of disadvantage do not diminish with the passage of time and will be given full weight when I formulate an appropriate sentence: Bugmy v The Queen (2013) 249 CLR 571.…
Jinnette v R
[2012] NSWCCA 217 Para 38

…f conditional and supervised liberty may assist the protection of the community by maximising the prospect he will not reoffend again: Jinnette v R [2012] NSWCCA 217.…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194 Para 34

…suffering from a mental illness, intellectual disability or other mental problem were succinctly summarised by McClellan CJ at CL in DPP v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 at [177]. Each has to be considered in the context of this case. Omitting citations, they are:…
Courtney v R
[2007] NSWCCA 195 Para 30

…sessment. Those problems are exacerbated where serious crimes are committed. They have been described as “to an extent intractable”: Courtney v R [2007] NSWCCA 195; 172 A Crim R 371 at [1] (Basten JA). They require a “sensitive discretionary decision”: Engert v R ( 1995) 84 A Crim R 67 (Gleeson CJ).…
R v Hemsley
[2004] NSWCCA 228 Para 38

…ay have some effect. Further, the additional hardship he suffers in custody because of his mental condition must be taken into account: R v Hemsley [2004] NSWCCA 228 at [41]. A long period of conditional and supervised liberty may assist the protection of the community by maximising the prospect he will not reoffend…
R v Israil
[2002] NSWCCA 255 Para 32

…mmunity. In those circumstances, considerations of community protection and specific deterrence may result in an increased sentence: R v Israil [2002] NSWCCA 255 at [24]; R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [28]…
R v Henry
[1999] NSWCCA 111 Para 32

…iderations of community protection and specific deterrence may result in an increased sentence: R v Israil [2002] NSWCCA 255 at [24]; R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [28]…
R v Henry
[1999] NSWCA 111 Para 32

…nity protection and specific deterrence may result in an increased sentence: R v Israil [2002] NSWCCA 255 at [24]; R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [28]…
Veen v The Queen (No 2)
[1988] HCA 14

…11; 46 NSWLR 346 R v Israil [2002] NSWCCA 255 R v McNaughton (2006) 66 NSWLR 566 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Worboyes v R [2021] VSCA 169 Category: Sentence Parties: Jason Keith Colvin (the offender) Public Prosecutions (NSW) (Crown) Representation: Solicitors: Ms E Parkes, Solicitor Adv…

Legislation cited in this decision · 4

Crimes (Sentencing Procedure) Act 1999 (NSW)
22A, 54A(2) 3 mentions (from Para 1)
Crimes Act 1900 (ACT)
195(1)(a), 61 3 mentions (from Para 1)
Crimes (Administration of Sentences) Act 1999 (NSW)
276 2 mentions (from Para 18)
Criminal Procedure Act 1986 (NSW)
1 mention (from Para 2)

Medium Neutral Citation:	R v Colvin (No 2) [2021] NSWDC 494
Hearing dates:	13 August 2021
Decision date:	20 September 2021
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence of 3 years 2 months with a non-parole period of 2 years
Catchwords:	CRIME — Aggravated Break Enter and Commit Indictable Offence Intimidation — Common Assault — Destroy or Damage Property SENTENCING — Relevant factors on sentence — Sentence after judge alone trial — Domestic violence related — Breach of parole — Institutionalised — Long history of offending — Childhood deprivation and abuse — Mental illness — Accumulation and totality — Assistance with the course of justice during the pandemic — Contracts COVID-19 while in custody — Other impacts of COVID-19 considered
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes (Administration of Sentences) Act 1999 (NSW) Criminal Procedure Act 1986 (NSW)
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571 Chenhall v R [2021] VSCA 175 Courtney v R [2007] NSWCCA 195; (2007) 172 A Crim R 371 DPP v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 Droudis v R [2020] NSWCCA 322 Engert v R (1995) 84 A Crim R 67 Jinnette v R [2012] NSWCCA 217 R v Colvin [2021] NSWDC 390 R v Hemsley [2004] NSWCCA 228 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v Israil [2002] NSWCCA 255 R v McNaughton (2006) 66 NSWLR 566 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Worboyes v R [2021] VSCA 169
Category:	Sentence
Parties:	Jason Keith Colvin (the offender) Public Prosecutions (NSW) (Crown)
Representation:	Solicitors: Ms E Parkes, Solicitor Advocate, Legal Aid NSW (for the offender) Ms A Hughes, Solicitor Advocate (for Director of Public Prosecutions)
File Number(s):	2020/00229157