R v Eckersley - [2022] NSWDC 747

District Court

New South Wales

Medium Neutral Citation: R v Eckersley [2022] NSWDC 747
Hearing dates: 15 August 2022
Decision date: 02 September 2022
Jurisdiction: Criminal
Before: King SC DCJ
Decision:
Convicted.
Special circumstances found – Bugmy factors, institutionalisation, need for a longer period
on supervised parole to assist with drug abuse, help guard against ongoing institutionalisation
& to reintegrate into the law-abiding community.
Form 1 matters (2021/00118140 SEQ 005, 2021/00118204 SEQ 002, 005 + 006)
taken into account on sentence
s166 matter 2021/00118140 SEQ 001 – Convicted pursuant to s10A – no other penalty
imposed
Indicative sentences of imprisonment:
2021/00118140
002 + Form 1 matter 005 – 2 years & 3 months
2021/00164791
001 + Form 1 matters 2021/00118204 SEQ 002,005,006 – 5 years with NPP 3 years & 3
months
Aggregate sentence:
Sentenced to a total term of imprisonment for 6 years comprising a NPP of 3 years and
10 months to commence on 28 April 2021 and to expire on 27 February 2025, upon
which date he is eligible for parole, and a balance of term of 2 years and 2 months to expire on 27 April 2027.

Catchwords:
CRIMINAL – Sentence – 1. aggravated break & enter & commit serious indictable offence – larceny – knowing persons present – police pursuit, not stop, drive dangerously + Form 1 matters: larceny – take and drive – enter building with intent to commit indictable offence – 2. drive under the influence – on 15-month CCO at time of offences – objective seriousness of offences – subjective matters – drug abuse – Bugmy factors – substantial criminal history - institutionalisation

Legislation Cited:
CrimesAct 1900
Crimes (Sentencing Procedure) Act1999
Road Transport Act 2013

Cases Cited:
Attorney General’s Application No 1 of 2002 [2002] NSWCCA 518
Bugmy v The Queen [2013] CLR 571
RvWay [2004] 60 NSWLR 168

Category: Sentence
Parties: Regina
Eckersley, Timothy Mark
Representation: Solicitors:
ODPP: Ms G Cornett
ALS: Mr U Naveed

File Number(s): 2021/00118140
2021/00118204
2021/00164791

JUDGMENT

HIS HONOUR: Timothy Eckersley appears for sentence in respect of two offences, they being aggravated break and enter and commit serious indictable offence (larceny), knowing persons present contrary to s 112(2) of the Crimes Act 1900. The maximum penalty provided is 20 years’ imprisonment and there is a standard non-parole period of five years’ imprisonment. When being dealt with for that offence, he asks the Court to take into account a number of offences contained on a Form 1, pursuant to s 32 of the Crimes (Sentencing Procedure) Act1999.
They are: take and drive conveyance contrary to s 154A(1)(a) of the Crimes Act which has, when dealt with separately, a five year maximum penalty; an offence of larceny contrary to s 117 of the Crimes Act, which when dealt with separately has a maximum penalty of five years’ imprisonment, and an offence of enter building with intent to commit an indictable offence, contrary to s 114(1)(d) of the Crimes Act

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 Eckersley

Details

AGLC: R v Eckersley [2022] NSWDC 747
Case: [2022] NSWDC 747
Decision Date: 02 September 2022

CaseChat Overview and Summary

The case of R v Eckersley involved the defendant, Eckersley, who was convicted of multiple offences. Eckersley was found guilty of aggravated break and enter and commit serious indictable offence, larceny knowing persons present, dangerous driving during a police pursuit, and driving under the influence of drugs while on a community correction order (CCO). The case was heard in the Magistrates' Court of Victoria.

The primary legal issues that the court had to address were the objective seriousness of the offences, the subjective factors pertaining to Eckersley's circumstances, and the application of the Bugmy factors in determining the sentence. The court needed to balance the objective gravity of the offences against Eckersley's personal circumstances, including his drug abuse, substantial criminal history, and the need for institutionalisation and rehabilitation.

The court considered the Bugmy factors, which include the nature and circumstances of the offence, the offender's character and background, and the need for deterrence and rehabilitation. Eckersley's extensive criminal history and ongoing drug abuse were significant factors that influenced the court's decision. The court determined that Eckersley required a longer period on supervised parole to address his drug issues, prevent further institutionalisation, and facilitate his reintegration into society. The court also took into account the Form 1 matters in sentencing, which involved Eckersley's previous convictions and the need for a balanced and proportionate sentence.

The court sentenced Eckersley to a total term of imprisonment of six years, with a non-parole period of three years and ten months, and a balance of term of two years and two months. Eckersley is eligible for parole upon the expiration of the non-parole period.

Orders

Orders of the court

Convicted.

Special circumstances found – Bugmy factors, institutionalisation, need for a longer period

on supervised parole to assist with drug abuse, help guard against ongoing institutionalisation

& to reintegrate into the law-abiding community.

Form 1 matters (2021/00118140 SEQ 005, 2021/00118204 SEQ 002, 005 + 006)

taken into account on sentence

s166 matter 2021/00118140 SEQ 001 – Convicted pursuant to s10A – no other penalty

imposed

Indicative sentences of imprisonment:

2021/00118140

002 + Form 1 matter 005 – 2 years & 3 months

2021/00164791

001 + Form 1 matters 2021/00118204 SEQ 002,005,006 – 5 years with NPP 3 years & 3

months

Aggregate sentence:

Sentenced to a total term of imprisonment for 6 years comprising a NPP of 3 years and

10 months to commence on 28 April 2021 and to expire on 27 February 2025, upon

which date he is eligible for parole, and a balance of term of 2 years and 2 months to expire on 27 April 2027.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Eckersley [2022] NSWDC 747
Hearing dates:	15 August 2022
Decision date:	02 September 2022
Jurisdiction:	Criminal
Before:	King SC DCJ
Decision:	Convicted. Special circumstances found – Bugmy factors, institutionalisation, need for a longer period on supervised parole to assist with drug abuse, help guard against ongoing institutionalisation & to reintegrate into the law-abiding community. Form 1 matters (2021/00118140 SEQ 005, 2021/00118204 SEQ 002, 005 + 006) taken into account on sentence s166 matter 2021/00118140 SEQ 001 – Convicted pursuant to s10A – no other penalty imposed Indicative sentences of imprisonment: 2021/00118140 002 + Form 1 matter 005 – 2 years & 3 months 2021/00164791 001 + Form 1 matters 2021/00118204 SEQ 002,005,006 – 5 years with NPP 3 years & 3 months Aggregate sentence: Sentenced to a total term of imprisonment for 6 years comprising a NPP of 3 years and 10 months to commence on 28 April 2021 and to expire on 27 February 2025, upon which date he is eligible for parole, and a balance of term of 2 years and 2 months to expire on 27 April 2027.
Catchwords:	CRIMINAL – Sentence – 1. aggravated break & enter & commit serious indictable offence – larceny – knowing persons present – police pursuit, not stop, drive dangerously + Form 1 matters: larceny – take and drive – enter building with intent to commit indictable offence – 2. drive under the influence – on 15-month CCO at time of offences – objective seriousness of offences – subjective matters – drug abuse – Bugmy factors – substantial criminal history - institutionalisation
Legislation Cited:	CrimesAct 1900 Crimes (Sentencing Procedure) Act1999 Road Transport Act 2013
Cases Cited:	Attorney General’s Application No 1 of 2002 [2002] NSWCCA 518 Bugmy v The Queen [2013] CLR 571 RvWay [2004] 60 NSWLR 168
Category:	Sentence
Parties:	Regina Eckersley, Timothy Mark
Representation:	Solicitors: ODPP: Ms G Cornett ALS: Mr U Naveed
File Number(s):	2021/00118140 2021/00118204 2021/00164791