R v Darcy

[2020] NSWDC 166

District Court

New South Wales

Medium Neutral Citation:	R v DARCY [2020] NSWDC 166
Hearing dates:	1 May 2020
Date of orders:	08 May 2020
Decision date:	08 May 2020
Jurisdiction:	Criminal
Before:	Lerve DCJ
Decision:	Sentenced – see paragraphs [64] to [69]
Catchwords:	CRIMES – sentence - Aggravated Break Enter and Commit Serious Indictable Offence - Aggravated Enter Dwelling with Intent to Steal – Goods in Custody – Larceny of a Motor Vehicle – Form 1 – lengthy criminal history – Bugmy factors
Legislation Cited:	Crimes Act, 1900 Criminal Procedure Act, 1986 Crimes (Sentencing Procedure) Act, 1999
Cases Cited:	Attorney General’s Application Pursuant to s 37 of the Crimes (Sentencing Procedure) Act 1986 No. 1 of 2002 (2002) 56 NSWLR 146 Beale v R [2015] NSWCCA 120 Bugmy v The Queen [2013] HCA 37 R v Despotovski [2010] NSWDC 110 Hunter v R [2011] NSWCCA 141 Hart v R [2014] NSWCCA 172 Imbornone v R [2017] NSWCCA 144 Jackson v R [2010] NSWCCA 162 Veen v The Queen (No. 2) (1988) 164 CLR 465
Category:	Sentence
Parties:	Director of Public Prosecutions (for the Crown) William Warren DARCY (offender)
Representation:	Solicitors: Ms J Dawson (for DPP) Mr J Murray (Aboriginal Legal Service, for the offender)
File Number(s):	2017/139257
Publication restriction:	No

sentence

1. The offender William Darcy was committed for sentence from the Young Local Court on 22 May 2018, however the offender failed to appear on 19 October 2018 at the Wagga Wagga District Court and a bench warrant was issued on that date. The offender was arrested in respect of that warrant on 27 November 2019 and he has been in custody since that date although he is also serving a sentence imposed in the Local Court.

2. The offender appears for sentence in respect of two substantive matters, namely a charge of Aggravated Break Enter and Commit Serious Indictable Offence contrary to s 112(2) of the Crimes Act, 1900 and a charge of Aggravated Enter Dwelling with Intent to Steal, contrary to s 111(2) of the Crimes Act. The circumstance of aggravation relied in both matters is that the offender was in company.

3. In addition to those substantive charges the offender asks that in respect of the charge contrary to s 111(2) of the Crimes Act when passing sentence the court takes into account two matters on a Form 1 document. One matter is a charge of what is commonly or shortly known as Goods in Custody contrary to s 527C(1)(c) of the Crimes Act. The other is a charge of Larceny of a Motor Vehicle contrary to s 154F of the Crimes Act. The vehicle was stolen from the garage that was broken into.

4. In dealing with the charge contrary to s 111(2) of the Crimes Act and taking into account the matters on the Form 1 document I will need to give proper regard to the principles enunciated by the Court of Criminal Appeal in the Attorney General’s Application Pursuant to s 37 of the Crimes (Sentencing Procedure) Act 1986 No. 1 of 2002 (2002) 56 NSWLR 146, otherwise known as the Guideline Judgment on Form 1 matters. Noting the charge of Larceny of a Motor Vehicle in particular, there must be some meaningful impact on the sentence that is ultimately imposed.

5. Further, attaching to a Certificate pursuant to s 166 of the Criminal Procedure Act, 1986 there are two matters to which the offender has pleaded guilty, namely a charge of Being Carried in a Stolen Conveyance contrary to s 154A(1)(b) of the Crimes Act and a charge of Larceny contrary to s 117 of the Crimes Act. These matters will have little impact on the ultimate sentence that is to be imposed.

6. The pleas of guilty that were entered in the Local Court were adhered to at the sentence hearing at the Wagga Wagga District Court on 1 May 2020 and accordingly the offender is entitled to the full 25% for the utilitarian value of the pleas of guilty.

7. The maximum penalty for the offence contrary to s 112(2) of the Crimes Act is twenty years imprisonment. Parliament has specified a standard non-parole period of five years in respect of that offence. I acknowledge that I am engaged in a one-step instinctive process in which two of the principal guideposts are the maximum penalty and the standard non-parole period.

Facts

8. The facts are before the Court by way of agreed facts that are contained within the Crown tender bundle, exhibit A on sentence. On 1 March 2017 Mr Noel Quinn went out and then returned to his address in Polding Street, Yass and parked his blue Ford Falcon sedan registered number NQ 021 in the garage. He left the keys in the vehicle and the vehicle was unlocked but he locked the garage. At about 9.30 am on 2 March 2017 he went to the garage to get some tools and the vehicle was still in the garage. He went back inside his house.

9. Sometime after 9.30 am on 2 March 2017 one of the trio of this offender, a person Dillon Dugdale and Tahlia Dixon entered the open garage door and stole the vehicle. Sometime later police spoke to Mr Quinn about the location of the vehicle and this was the first time that he became aware that the vehicle was not in the garage.

10. At about 11.45 am the offender, Dugdale and Dixon walked into the Mobile Service Station in Marsden Street, Boorowa. The offender stole three baseball caps from a rack located near the door. This gives rise to the charge of larceny attaching to the s 166 Certificate.

11. It was some time after this that the Aggravated Break Enter and Steal was committed. The victim in that matter was Kelly Surek, who was then 32 years of age and living at an address in Market Street, Boorowa with her husband and two year old child. She was also 28 weeks pregnant. The front door was closed but unlocked, the laundry screen door was closed and locked and the back door was closed but unlocked. The bathroom and bedroom windows were partially open but covered with a fly screen. The victim placed her daughter into bed in the main bedroom and lay down with her while she went to sleep. The bedroom door was partially closed.

12. About half an hour later the victim heard the front door open and the footsteps of someone enter the residence. She also heard someone whistling a tune. She also heard loud footsteps and a female talking in hushed tones. She went to investigate and observed Dugdale standing at the back sliding door, which was open. Dixon was also in the kitchen.

13. Not surprisingly, Ms Surek said, “What are you doing in my house?” Dixon and Dugdale turned around with Dugdale saying, “Of fuck, Oh fuck, we have to get out of here”. Dixon grabbed the victim’s Apple iPhone from the kitchen bench and then with Dugdale ran through the hallway and out the front door. This offender, who was driving the stolen blue Ford sedan, pulled up in Market Street outside the house. Dugdale yelled, “Go, go” a number of times. Dugdale got into the back of the car and Dixon into the front. According to the agreed facts this (i.e. being in the vehicle) gives rise to the other matter attaching to the s 166 Certificate.

14. The victim called her husband and triple-0. The victim found that the drawers and cupboards in the bedroom to the left of the entry hallway were open. They had been closed earlier in the day.

15. At 2.41pm police performing highway patrol duties observed the Ford sedan travelling north along Lachlan Valley Way. Warning devices were activated and police caught up to the Ford and signalled for it to stop. It did not stop and a police pursuit was initiated. As the vehicle got to the outskirts of Cowra police terminated the pursuit.

16. The vehicle was located later that evening in Keswick Street, Cowra with the front and rear passenger doors open and the keys in the ignition. Police seized the vehicle and a backpack located nearby for forensic examination.

17. Police recovered from the vehicle a Canon digital camera that contained a number of images of this offender and the co offender Dixon. They also recovered Ms Surek’s mobile phone.

18. A number of items were recovered from the backpack including a packet of razor blades (later identified as belonging to Mr Quinn), various hand tools and torches, three mobile phones, the caps stolen from the service station, car keys, Bluetooth speakers and wallet and credit cards giving rise to the charge of Goods in Custody on the form 1 document.

19. On 11 October 2017 an extradition order was made in the ACT Magistrate’s Court in relation to an outstanding warrant for this offender. He was taken to the Queanbeyan Police Station where he was charged and a forensic procedure undertaken. Fingerprints matching those of this offender, Darcy and Dugdale were located on the external windows of the Ford sedan. DNA that matched the profile of this offender was found on a cigarette butt located inside the vehicle and on the backpack as well as one of the mobile phones.

Assessment

20. I indicated at an early stage of the sentence hearing that I had formed the preliminary view that both substantive matters were moderately below mid-range. I did not understand either party to take any particular issue with that.

21. However, for more abundant caution I note that the incursion into Mr Quinn’s property was limited to the garage although he was at home. Clearly enough, the intention of the offender and the co offenders was to steal the motor vehicle. The offending occurred in daylight at residential premises.

22. So far as the s 112(2) offence is concerned I note what was said by Adams J in Hunter v R [2011] NSWCCA 141 at [52] as to what would be required to constitute a mid-range offence. In this matter the premises involved were residential and given the time of day and the fact that the doors were unlocked it would have been obvious that it would have been very likely that the premises were occupied. The cupboards and drawers were open in a bedroom but the facts do not indicate that there was any ransacking of the premises. The offending was random and opportunistic. There was one mobile phone taken. When the occupant confronted the offenders Dugdale and Dixon they left immediately. This offender was outside in the vehicle acting as the look out and get away driver. These matters in combination lead me to the conclusion the matter was moderately below mid-range.

23. On the issue of the assessment, the moral culpability of this offender is less than Dugdale and Dixon as he did not actually enter the premises.

Parity

24. Neither party, either in their respective written submissions nor their oral submissions, made any submission addressing the issue of parity. This occurred to me while preparing these remarks. In those circumstances I had my Associate contact the parties and ask whether they wished to make any submission on this issue. I was advised that there was no issue of parity as neither of the co–offender have been sentenced.

Criminal History

25. The offender has a lengthy record that does not entitle him to any particular leniency. He has a number of matters recorded against him in the Children’s Court and in 2010 was dealt with in the District Court for an Aggravated Robbery in respect of which he was sentenced to 3 years imprisonment. He has since been convicted in New South Wales with Possession of Housebreaking Implements.

26. Further, the offender has an extensive record in the ACT. The matters recorded against him in that jurisdiction include Destroy or Damage Property, Contravene Family Violence Order, Affray, Obtain Property by Deception, Unlawful Possession of Stolen Property, Common Assault, Assault Occasioning Actual Bodily Harm, Possession of a Knife and Aggravated Burglary.

27. Mr Murray who appears for the offender calculated that in the last ten years the offender has been in custody for the better part of six and one half years. Looking at the record there is no reason to doubt the calculation.

28. Although the criminal history of the offender is lengthy, I deal with it on the basis that the offender is not entitled to any particular leniency rather than treat it as a factor of aggravation pursuant to s 21A(2)(d) of the Crimes (Sentencing Procedure) Act, 1999 because of the limited number of convictions for break and enter type offences. However, the offender needs to be very well aware that he is approaching the point where if he re-offends a court will be entitled to treat his record as one that enlivens the principles enunciated by the High Court in Veen v The Queen (No. 2) (1988) 164 CLR 465.

29. Mr Murray for the offender supplied a chronology, marked MFI 3 on sentence, setting out the recent periods of time the offender has spent in custody either in the ACT or New South Wales. This document was directed towards the submission as to the appropriate starting date for the sentence to be imposed in this matter.

Subjective Case for the offender

30. No oral evidence was called from or on behalf of the offender. However a report prepared by Dr Sharon Klamer, Psychologist, was tendered without objection and became exhibit 1 on sentence.

31. The offender is a 30 year old indigenous male originally from Warren in far western New South Wales. He is the second of four children. Both brothers are presently in custody in the ACT for drug offences. The offender described to the author of the report a childhood being surrounded by violence and alcohol. He was seriously sexually assaulted by an uncle as a child. He regularly witnessed episodes of domestic violence in his formative years. I note that a little later in the report at paragraph 19 the author sets out, “Mr Darcy recalled commencing marijuana use at the age of eight when he would be given it or take it from his father”. There is simply no reason to doubt any of what is contained in the report about the formative years of the offender.

32. In this regard I also note the author of the Sentence Assessment Report (SAR), which is part of the Crown tender bundle (exhibit A on sentence) sets out at p 2 that the offender gave an account of being reared in an environment where substance abuse and domestic violence was common.

33. I have set out the details of the deprivations suffered by the offender in his formative years in a somewhat bland and summarised fashion. The information is so very consistent with the evidence I heard about this issue when the presiding judge in Dubbo for the better part of six years. I take no persuading whatsoever that the principles enunciated by the High Court in Bugmy v The Queen [2013] HCA 37 are enlivened thereby reducing the moral culpability of the offender.

34. According to paragraph 13 of the report, the offender’s sister converted to Islam over ten years ago; the offender too has recently converted to Islam while in custody and has been adhering to the daily rituals of prayer and diet. As Mr Murray submitted, Islam has strict rules about abstinence from alcohol and illicit substances. The offender told the author of the report that he feels the structure and foundation of the religion is assisting in him keeping a clear head.

35. One of the co-offenders, which I presume to be Ms Dixon, is the mother of the offender’s two children. The children are now in care and he has not had contact with them for about seven years.

36. The author of the report sets out at paragraph 16 that at the interview there were no evidence of any cognitive or neurological deficits. The offender however it would seem had a limited formal education with him completing Year 10 while he was in custody at a Juvenile Justice institution.

37. The offender told the author of the report that he has recently discovered how much he likes art and music and is interested in pursuing that as a career upon his eventual release. He wishes to live with his mother who has a property near Yass upon release and he also wishes to complete an art course at Redfern.

38. I have already referred to the issue of the offender commencing to use cannabis at the age of eight. At the age of 18 he commenced using methyl amphetamine on a regular basis. It seems that his regular use of this substance has led to considerable conflict between the offender and the criminal law.

39. At paragraph 25 of the report, Dr Klamer sets out that the offender stated he wanted to paint a painting for the victims to express his feelings of remorse and sorrow. He appeared remorseful but the author notes that his insight into the impacts on his victims may be limited given his limited recall because of his intoxication with “ice”.

40. The SAR also notes that the offender was under the influence of ice at the time of offending and that the offender was dependant on that substance.

41. The author of the SAR notes at p 2 that the offender accepted responsibility for his actions.

42. Although there was no oral evidence, Mr Murray on behalf of the offender submitted that I would find on balance that the offender was remorseful. Ordinarily I am extremely reluctant to find remorse established on balance based on untested statements to authors of reports – see for e.g. Imbornone v R [2017] NSWCCA 144 at [57]. However, the expressions are a little different from the usual bland statements in reports. I was particularly impressed with the offender telling Dr Klamer that he wanted to paint a picture for the victims. This is one of those rare cases where I am prepared to find on balance that the offender is remorseful on the reports. However, as the expressions are untested it does not achieve the same weight as it would if it were accompanied by oral evidence from the offender.

43. Returning to the psychological report the author notes at paragraph 26 that the offender became upset and was reluctant to discuss the sexual assaults he suffered as a child. Dr Klamer recommends follow up treatment following release into the community. The need for supervision to ensure that this occurs is one of a number of factors that justify a finding of special circumstances. The other factors include the need for an extended period of supervision to ensure that the offender reintegrates appropriately into the community and further that he receives appropriate treatment and counselling in respect of substance abuse.

44. It appears from the psychological report that the offender has recently been prescribed anti-depressant and anti-psychotic medication. Understandably Dr Klamer also recommends that the offender undergo a psychiatric assessment.

45. Dr Klamer concluded that there were no signs of cognitive disorders, that his conduct might have been influenced in part by his disadvantaged upbringing, that he expresses remorse for his actions and observed (paragraph 34) that the offender is or is at the risk of becoming institutionalised. She recommends an intensive drug and alcohol programme, that he undergo a comprehensive psychiatric assessment, he participate in pre-release programmes and that he be assisted in his interest in art including support in applying for the Aboriginal art programme in Redfern.

46. I return to the issue of institutionalisation. Mr Murray in his written submissions (MFI 2 on sentence) submits that the offender is either institutionalised or is at risk of becoming so. He relies upon the decision of Jackson v R [2010] NSWCCA 162. In particular I note [24] of the judgment of Fullerton J (McClellan CJ at CL, Simpson J (as her Honour then was) agreeing). I also note the decision of Hart v R [2014] NSWCCA 172 per Bellew J (Gleeson JA, Adamson J agreeing).

47. However, there is also the decision of Beale v R [2015] NSWCCA 120 where Beech-Jones J (Hoeben CJ at CL, RA Hulme J agreeing) where his Honour at [68] said:

“…However the mere identification of an offender as being institutionalised or at risk of institutionalisation does not compel a sentencing Court to find special circumstances and reduce the non-parole period. The overall purpose of the exercise is to facilitate the offender’s rehabilitation. To that end “there must exist significant positive signs which show that if the offender is allowed a longer period on parole, rehabilitation is likely to be successful” (R v Tuuta [2014] NSWCCA 40 at [57]; see also R v Carter [2003] NSWCCA 243 at [20]).”

48. However, in this matter as I have already set out, there are a number of factors that justify a finding of special circumstances. In the present matter there are some very positive signs. He has found a faith that has strict rules about intoxicating substances. He has been prescribed appropriate medication. He has had the benefit of a very thorough and comprehensive psychological report that I will direct be forwarded to the Department of Corrective Services to accompany the warrant. The issue of institutionalisation in this case is something that in my opinion can go towards a finding of special circumstances.

Submissions

49. Both advocates prepared written submissions. The submissions from the Crown are MFI 1 on sentence and Mr Murray’s submissions are MFI 2. Mr Murray prepared a table within his submissions which was supplemented by a further table presented at the sentence hearing which became MFI 3. An issue arose at the sentence hearing as to the appropriate commencement date of the sentence to be imposed in this matter. My Associate was advised in the same email communication which advised about the issue of parity that the parties agree that the sentence should commence on 26 August 2019. I have given the matter independent consideration and I have no particular issue with that being the commencement date of the sentence. A hard copy of the email will be marked MFI 4.

50. Mr Murray’s submissions then went to the objective seriousness of the matter and the moral culpability of his client, noting that he did not enter the house in Boorowa. I have already dealt with those issues. Likewise I have dealt with the issues of institutionalisation and the need for special circumstances to address the issue of the offender’s substance abuse. The deprived background, a subject with which I have also dealt, is referred to later in Mr Murray’s submissions.

51. Further, Mr Murray refers to the present COVID-19 pandemic making the incarceration more onerous. It is uncertain as to how long restrictions will remain in force. At the time of the preparation of these reasons the principal hardship is the lack of contact and visits from family. I accept that that is a hardship. In this regard I note what was said by Haesler SC DCJ in his remarks on sentence in R v Despotovski [2020] NSWDC 110 at [35]-[39]:

“The present crisis has increased apprehension by prisoners about infections in gaols, as it does in the community in general. As a community we are being asked, urged and compelled to self-isolate. This cannot happen in a gaol. Prisoners cannot practice physical distancing, particularly sweepers whose job it is to clean within the gaols. Prisoners are personally unable to implement social distancing. They are completely reliant on the authorities; who have complete control over their lives.

[36] Social visits have been suspended for an indefinite period, although access to telephone calls has increased: CSNSW memo response to COVID-19, 25 March 2020. Absence of visits from family and friends is an additional hardship.

[37] These concerns and considerations apply to every prisoner sentenced and for sentence. I am however sentencing this offender today based on current knowledge of COVID-19 and the response to the crisis as advised by Corrective Services NSW

[38] If and in reality, it is when COVID-19 enters gaols early parole may be given some prisoners: s276 Crimes (Administration of Sentences) Act1999. The offender falls into a category that might be considered for early parole.

[39] I cannot predict what will happen to this offender but the lack of visits reducing any capacity to remain in contact with pro-social friends and family, and that heightened anxiety and concerns, are relevant factors that must be synthesised along with all other matters. The extent, to which those may be taken into account is a matter to be resolved on the particular facts of this individual case: Brown v R [2020] VSC 60 at [48]. Here his depression and anxiety will be exacerbated. Although I note his health concerns (they are not supported by other evidence) nothing in particular puts Despotovski at greater risk than every other prisoner.”

52. With unfeigned respect to my colleague I agree with his remarks at [39] and will take those matters into account in the same manner as Haesler SC DCJ.

53. The Crown also made submissions as to the objective seriousness of the offending and the offender’s role. I not perceive there to be anything particularly controversial about those issues. The Crown correctly submits that both substantive offences are aggravated by the fact that they were committed in the home of the victim thereby enlivening the factor of statutory aggravation in s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act.

54. The Crown submits that the court would not find on balance that the offender is unlikely to re-offend and that there are good prospects of rehabilitation. I have already dealt with those issues. The Crown notes that the expressions of remorse are untested and I have also dealt with that issue. The date of commencement of the sentence has been agreed upon.

55. The Crown makes submissions on the issue of delay. Appropriately, Mr Murray did not make any submission on this issue either in writing or orally. Any delay is entirely attributable to the offender failing to appear.

56. On the issue of the COVID-19 pandemic the Crown submits that there is no evidence that this offender is at any greater risk than other inmates. That is so, however, as I have already said I agree with the observations of Haesler SC DCJ in the matter of R v Despotovski.

General Remarks

57. I will need to give proper effect to the provisions of sections 3A and 5 of the Crimes(Sentencing Procedure)Act. Section 3A sets out the purposes of punishment, namely:

1. to ensure that the offender is adequately punished for the offence,

2. to prevent crime by deterring the offender and other persons from committing similar offences,

3. to protect the community from the offender,

4. to promote the rehabilitation of the offender,

5. to make the offender accountable for his or her actions,

6. to denounce the conduct of the offender, and

7. to recognise the harm done to the victim of the crime and the community.

58. Section 5 of the Crimes (Sentencing Procedure) Act provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives no other sentence is appropriate. Given the maximum penalty, the standard non-parole period in respect of the s 112(2) offence, the nature of offending and the criminal history, I am firmly of the opinion that there must be a sentence of imprisonment. Likewise noting those same issues, the sentence must be a sentence of full time imprisonment. I did not understand Mr Murray to submit otherwise than a sentence of full time custody be imposed.

59. For more abundant caution, given the record of the offender I cannot on balance find that he is unlikely to reoffend. I am fortified in that by the failure oto appear. Further, although there are some very positive signs, I am not prepared to find on balance at this stage that there are good prospects of rehabilitation. Much will depend on how the offender engages upon release.

60. As I am dealing with two substantive matters and two matters attaching to a Certificate pursuant to s 166 of the Criminal Procedure Act I am of the opinion that this is an appropriate matter for me to invoke section 53A of the Crimes (Sentencing Procedure) Act and impose an aggregate sentence. These reasons have been reduced to writing and a copy will be made available to each party upon pronouncement of sentence.

61. If separate sentences were imposed there would be a need to partially accumulate the sentences to some extent to take account of the separate victims and the separate criminality. However, the principle of totality would also need to be applied. The issue of totality in respect of the other sentences the offender is serving is attended to by backdating the sentence to 26 August 2019. The matters attaching to the s 166 Certificate are such that the small sentences would be wholly concurrent with the other sentences imposed. This is particularly so for the charge of Be Driven in Stolen Conveyance contrary to s 154A(1)(b) of the Crimes Act which is so closely connected to the Steal Motor Vehicle on the Form 1 document.

62. It will be necessary for me to indicate the sentences that would otherwise have been imposed had separate sentences been imposed. In respect of the Charge of Aggravated Break Enter and Steal contrary to s 112(2) of the Crimes Act, noting the various objective and subjective factors and the offender’s role in the offence, a non-parole period of 1 year and 8 months with a balance of term of 11 months making a total of 2 years and 7 months indicating a starting point of 3.5 years with some minor rounding down in favour of the offender.

63. In respect of the charge of Aggravated Enter Dwelling with Intent to Commit a Serious Indictable Offence contrary to s 111(2) of the Crimes Act, again noting the various objective and subjective features and taking into account the matters on the Form 1 document, a total sentence of 2 years and 3 months indicating a starting point of 3 years.

64. In respect of each of the matters attaching to the s 166 Certificate the sentences that would have been imposed had separate sentences been imposed, a sentence of 3 months indicating a starting point of 4 months.

Orders

65. In respect of the matters to which the offender has pleaded guilty, including the matters attaching to the s 166 Certificate, the offender is convicted.

66. The offender is sentenced to an aggregate sentence of 3 years and 3 months with a non-parole period of 2 years and 2 months.

67. The non-parole period will commence on 26 August 2019 and will expire on 25 October 2021. The period on parole of 13 months will commence on 26 October 2021 and will expire on 25 November 2022.

68. The matters on the Form 1 document were taken into account in determining the indicative sentence for the charge contrary to s 111(2) of the Crimes Act.

69. The offender will be eligible for release to parole at the expiration of the non-parole period and I recommend that release.

70. The non-parole period is two thirds of the total sentence which indicates a finding of special circumstances the reasons for which have been enunciated earlier in these reasons.

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Decision last updated: 08 May 2020