R v James

Case [2021] NSWDC 746


District Court


New South Wales

Medium Neutral Citation: R v James [2021] NSWDC 746
Hearing dates: 25 August 2021
Date of orders: 25 August 2021
Decision date: 25 August 2021
Jurisdiction:Criminal
Before: M L Williams SC DCJ
Decision:

A term of imprisonment of 18 months to be served by way of an intensive corrections order: [45].

Catchwords:

SENTENCING — Aggravating factors — Home of victim or any other person — Record of previous convictions — Substantial harm, injury, loss or damage — Victim impact statement

SENTENCING — Mitigating factors — Plea of guilty — Rehabilitation — Remorse

SENTENCING — Penalties — Intensive correction orders

SENTENCING — Relevant factors on sentence — Co-offenders — Joint criminal enterprise — Deterrence — Form 1 offences — Maximum penalty — Moral culpability — Objective seriousness — Purposes of sentencing — Quasi custody

SENTENCING — Subjective considerations on sentence — Aboriginal offenders — Drug addiction — Mental illness

Legislation Cited:

Crimes Act 1900

Crimes (Domestic and Personal) Violence Act 2007

Crimes (Sentencing Procedure) Act 1999

Drug Misuse and Trafficking Act 1985

Cases Cited:

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146

Bugmy v The Queen (2013) 249 CLR 571

Mandranis v The Queen [2021] NSWCCA 97

R v Millwood [2012] NSWCCA 2

R v Pullen [2018] NSWCCA 264

R vThomas [2007] NSWCCA 269

Category:Sentence
Parties:

Regina (Office of the Director of Public Prosecutions)

Timothy James (aka Timothy James Smith)(Offender)
Representation:

Ms M Wankell (Solicitor, Office of the Director of Public Prosecutions)

Ms H Webb (Solicitor, Aboriginal Legal Service)
File Number(s): 2020/146162

Judgment

  1. Forty four year old Timothy James, as he is now known, pleaded guilty to one count of aggravated break and enter and commit a serious indictable offence, namely intimidation in company, contrary to s 112(2) of the Crimes Act 1900. This offence carries a maximum penalty of 20 years imprisonment with a standard non-parole period of five years.

  2. He pleaded guilty in circumstances justifying a 10% discount on any term of imprisonment.

  3. It is conceded that the section 5 threshold has been crossed, and that a term of imprisonment should be imposed.

  4. The sentencing process is carried out in accordance with the purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act 1999, and bearing in mind the maximum penalty and the standard non-parole period as yardsticks in the sentencing process.

  5. There is also a Form 1 offence of intimidation (s 13(1) Crimes (Domestic and Personal) Violence Act 2007) to be taken into account in the way suggested by the Chief Justice in the guideline judgment on these matters (Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146). The Form 1 matter is intimately involved in the facts of the principal offence, as will be clear when I recount the facts.

  6. There is also a charge of possess prohibited drug contrary…

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AGLC
R v James [2021] NSWDC 746
Case
[2021] NSWDC 746
Decision Date

CaseChat Overview and Summary

The case of R v James involved the sentencing of the defendant, James, in an Australian court. James had been convicted of various offences, including those related to breaking and entering and theft, with the aggravating factors including the fact that the crimes were committed at the victim's home and James had a history of prior convictions. The court also considered the substantial harm caused to the victim, as evidenced by the victim impact statement. Mitigating factors included James's plea of guilty, his potential for rehabilitation, and his expression of remorse.

The legal issues before the court included determining the appropriate sentence for James, considering both aggravating and mitigating factors. The court had to weigh the severity of the offences, the role of James in the joint criminal enterprise, and the need for deterrence, against his early guilty plea, potential for rehabilitation, and personal circumstances such as his drug addiction and mental health issues. The court also had to decide whether an intensive correction order would be an appropriate form of sentencing.

The court determined that an intensive corrections order was suitable, given the nature of the offences and the mitigating factors. The court found that while the crimes were serious, particularly due to their impact on the victim, James's early guilty plea and his potential for rehabilitation were significant mitigating factors. The court also considered James's personal circumstances, including his drug addiction and mental health issues, which influenced the sentencing decision. Ultimately, the court sentenced James to a term of imprisonment of 18 months, to be served by way of an intensive corrections order.

The court's final orders were that James would serve a term of imprisonment of 18 months, to be served through an intensive corrections order, reflecting a balanced consideration of both the aggravating and mitigating factors in the case.

Orders

Orders of the court

A term of imprisonment of 18 months to be served by way of an intensive corrections order: [45].

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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