R v James

[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…