R v Jones

[2023] NSWDC 357

District Court

New South Wales

Medium Neutral Citation:

R v Jones [2023] NSWDC 357

Hearing dates:

17 February 2023

Date of orders:

23 February 2023

Decision date:

23 February 2023

Jurisdiction:

Criminal

Before:

Priestley SC DCJ

Decision:

23 February 2023

Catchwords:

CRIME — Drug offences — Supply prohibited drug

CRIME — Drug offences — Supply prohibited drug — Indictable quantity

CRIME — Property offences — Receiving stolen motor vehicle

CRIME — Property offences — Steal motor vehicle

CRIME — Property offences — Steal property

CRIME — Property offences — Take and drive a conveyance

CRIME — Property offences — Larceny

CRIME — Driving offences — police pursuit

CRIME — Property offences — Break and enter and steal

CRIME — Property offences — Destroying or damaging property

Legislation Cited:

Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR

Cases Cited:

Hall v The Queen [2021] NSWCCA 220

R v Holder [1983] 3 NSWLR 245

Mill v The Queen [1988] HCA 70

Cahyadi v R [2007] NSWCCA 1

Texts Cited:

NA

Category:

Sentence

Parties:

Regina (Crown)
Beau Jones (Offender)

Representation:

Solicitors:
Enderwick (Crown)
Beesley (Offender)

File Number(s):

2022/00137073, 2022/00137117

Publication restriction:

NA

JUDGMENT

1. The offender, Beau Michael Jones, appears for sentence in respect of 17 offences committed between April and August 2021. There are also five matters on five different Form 1s which are to be taken into account in sentencing for five of the 17 offences. Each of the Form 1 matters is the offence of destroying property and the property destroyed is the property the subject of the principal offence.

2. On 31 August 2022 the offender was sentenced in respect of five other offences committed on 9 August 2021 which was the date of his arrest. The parties are agreed that the sentence arrived at today should apply the principle of totality taking into account the sentence already imposed for those five offences. The result is there is a need for consideration of 27 different offences five of which appear on 5 different Form 1s.

3. Set out at the conclusion of these reasons Is a table which identifies firstly with five offences already sentenced, indicated by the letters “a” through to “e” inclusive and setting out the indicative sentences and aggregate sentence imposed for that offending, and then sets out 17 of the offences being sentenced today. In respect of those offences the table gives a short form statement of the facts and states the assessment of objective seriousness and also indicates the indicative sentences both before and after the 25% discount. The table then notes the Form 1 matters. Finally, the table sets out the last three offences which are drug offences conceded by the Crown to be low in objective seriousness and being drug activity discovered through telephone intercepts in respect of the first two of those counts and by the location of drugs upon the search of the offender’s residence in respect of the third of those counts.

4. Given the multitude of offending necessary to consider these reasons will be structured as follows;

1. Identify the facts and objective seriousness of the offending by reference to the table with any additional necessary comment.

2. Setting out the offender’s subjective case. It is the proposal of the parties which I adopt that the subjective matters concerning the offender recorded in the reasons on sentence of 31 August 2022 be adopted in these reasons. That judgment made reference to an extensive criminal history covering a wide range of offending commencing at the age of 17. Lest there be any issue as to whether convictions were recorded in the Children’s Court, I put the children’s matters aside so the offending started as an adult in 2013 at the age of 20 with drug matters.

3. Discuss the relevant considerations and purposes of sentencing including the principle of totality to arrive at the appropriate sentence.

5. It follows that any consideration of these reasons also needs to have regard to the reasons on sentence of 31 August 2022.

Facts and objective seriousness

6. There were two Crown sentence summary bundles. They were marked exhibit A and exhibit B. Exhibit A sets out the relevant material for the first 14 offences which are property offences save for one police pursuit charge. The five Form 1 matters are set out at the beginning of the statement of agreed facts at tab two of exhibit A. By reference to the numbering of the offences on that page the five Form 1 matters respectively relate to counts 2, 4, 5, 11 and 13. So for example in relation to the offence of stealing the trailer at Mullaway damage was also caused to that vehicle, and that is the Form 1 matter to be taken into account. Dealing with the Form 1 matters seriatim the damage caused could be described as follows; minor, modest, minor, modest including cutting a hole in the trailer, and minor.

7. In regards to the Form 1 procedure it is important that the focus remains on the principal offence for which the offender is being sentenced. The procedure allows that in doing this greater weight may be given to the elements of personal deterrence and the community’s entitlement to extract retribution for serious offences. Those two elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence; see Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ.

8. The table sets out the maximum sentence in respect of each of the 17 offences. None of the offences has a standard non-parole period. I take the maximum penalty into account as a legislative guidepost indicating the legislature’s view of the seriousness of the offence so as to assist in arriving at the appropriate sentence.

9. Without in any way seeking to minimise this offending it is sufficient to describe the offences in the way as briefly summarised in the table. It is taking those matters into account that the assessment of objective seriousness is arrived at. In particular I would note the following matters in respect of the offenses impacting on objective seriousness, with the paragraph number being the same as the count as it appears in the table (which is slightly different to how it appears in the facts):

1. The facts established little more than what is needed to make out the offence;

2. The offender was equipped for the job in that he had an angle grinder to cut a padlock and was also equipped with registration plates when leaving with the trailer suggesting a degree of planning.

3. The offender retain the vehicle for a significant period of some two months;

4. Whilst the value is modest the extent gone to 2 remove the winch from the vehicle adds to the seriousness without confusing it with the damage matter;

5. The same comment as for the winch matter, but more serious because more is stolen;

6. As with the offenses just mention there is a determination and extent of involvement in taking and driving this vehicle without consent;

7. This is the police pursuit matter the highlight of which is not so much the speed of up to 140 km/h but travelling on the incorrect side of the Pacific Highway at about 130 km/h;

8. This is a bad example of this type of offence. It is taking into a residential home with the occupants present locating the keys and then stealing and then driving the vehicle without consent.

9. It was from that break-in that the dealing with identity information charge arose though with respect that was in my view a minor offence with the offender really appearing to have little idea of what was involved himself;

10. This was referred to at .8 above;

11. The offender gained access to a construction site at night by cutting a padlock. He then cut lockboxes off to shipping containers and stole a sledgehammer and some metal chains. He then winched the Kubota ATV onto a trailer and then drove both away. It was also on this occasion that he stole a battery. On a broad view appears somewhat audacious but at the same time it is offending behaviours blunt in X execution and I consider low in sophistication;

12. As for .11;

13. As 4.11;

14. This last offence of stealing a land cruiser from a rural property in the dead of night and involving entering into Amy’s house to find the keys within a jacket and again reflects a certain steely determination of the offender with total disregard to the owner.

15. As to the supply matters there was no argument that this was other than offending which was low in objective seriousness. That said the maximum sentences are significant and the supply occurred over a four-month period which in turn commence only shortly after commencing parole and ended only on being arrested.

10. Each offence needs to be considered individually for the purpose of assessing objective seriousness. It is notable however that overall the offending is towards the lower end of the range of objective seriousness. There is about the offending a common theme of brazenness and also of being prepared with tools such as angle grinders to facilitate the offending. With some exception the offending is all of fairly modest value, the notable exception being the $60,000 Mercedes. That said, this repeated flagrant offending displays a total disregard to the rights of the victims and a total disregard for society’s laws. The principles of McNaughton and Veen apply here, so that the sentences may be heavier to reflect a greater need for deterrence, whilst remaining within the range of sentence reflecting the objective seriousness of the offence.

Subjective matters

11. The offender was on conditional liberty, namely parole, at the time of all of this offending. He had been released on parole in February 2021 for offending which included police pursuit, and he is to be sentenced again today for an offence of police pursuit and was sentenced in August last year for an offence of police pursuit. At the time of that sentence, he had spent four of the previous eight years in custody so now he has spent some 4 ½ of the last 8 ½ years in custody. The offender was born on 18 October 1993, so he is now 29 years old. As noted in the earlier judgment there is a great risk of institutionalisation. At the same time, he is plainly a prolific offender and there is a real need to protect the community. There was only a short period of some two months between being released to parole and the first of many offences in the following four-month period.

12. As already noted, on 31 August 2022 he received a sentence in respect of offending occurring on 9 August 2021. Those offences were uncovered when he was arrested on that day and were of a police pursuit and of possessing a loaded firearm in public. There were also three matters dealt with by way of section 166 certificate.

13. It is the proposal of the parties which I adopt that the subjective matters concerning Mr Jones recorded in the reasons on sentence of 31 August 2022. As noted above that judgment referred to an extensive criminal history with the adult offending commencing in 2013 at the age of 20 with drug matters. I take this criminal history into account in the way indicated above.

1. The offender is entitled to a 25% discount for entering his plea at the earliest opportunity to these offences. Additionally, and taken from the earlier reasons on sentence the subjective case of the offender has the following features;

2. The offender has a background in social disadvantage including by reason that his father was a heroin addict.

3. Drug use started at age 11 with amphetamines following and then by age 16 heroin.

4. He left school in year 9 and was sexually assaulted at school in year 7 which the psychological evidence suggested, and I accept was causative of continuing drug use. There is a need for psychological support to manage depression and anxiety.

5. Covid has had an adverse impact on the offender by restricting treatment available in custody.

6. There are mental health issues or indicators of the same recognised by the psychologist.

7. The case is one analogous Millwood [2012] NSWCCA 2 as explained in the earlier reasons.

8. In the circumstances where there is this background the need for deterrence is lesser without by any means being obviated.

9. The offender has a young son and that may provide motivation that to date has not been evident. It is important also to do what can be done to prevent institutionalisation though there is of course a real tension in achieving that and ensuring that the purposes of sentencing, including the protection of the community are properly recognised for this large number of offences.

14. As found in the earlier reasons the likelihood of reoffending cannot be thought to be less than medium and is assessed as medium to high. The psychologist sets out a plan for rehabilitation. The prospects of rehabilitation however I would put as being in line with the likelihood of reoffending. In other words they are not overly promising but in my view they should be facilitated as far as possible.

15. The parole period that the offender was on at the time of this offending expired on 16 October 2021. He went into custody on 9 August 2021. The sentence he received In August 2022 was to date from 16 September 2021.

16. It is common ground between the parties that in imposing the sentence today the approach should be taken as if the offending was all being sentenced for at the same time and that the principle of totality be given due consideration. I agree that that is the appropriate course.

17. In respect of the principles of totality, I note in the case of Hall v The Queen [2021] NSWCCA 220 Hulme J reviewed the principles of totality. He referred to R v Holder [1983] 3 NSWLR 245 which makes it plain that what is required for a sentencing judge to evaluate is the overall criminality involved in all of the offences and to adjust the aggregate sentences, "to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences." Put perhaps more simply his Honour referred to Mill v The Queen [1988] HCA 70 where it was said the court, "Must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences."

18. Hulme J also referred to Cahyadi [2007] NSWCCA 1. At [27] of Cahyadi it was said in considering whether the sentence for one can comprehend the criminality of another:

"This is so regardless of whether the offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course, it is more likely that where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will affect the criminality of both.".

Consideration and outcome

19. The purposes of sentencing are as follows:

1. To ensure the offender is adequately punished;

2. To prevent crime by deterring the offender and others from committing similar offenses;

3. To protect the community from the offender;

4. To promote the rehabilitation of the offender;

5. To make the offender accountable for his actions;

6. To denounce the conduct of the offender;

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

20. In this case it is the purposes of deterrence, accountability and protection of the community that require recognition more than the other purposes just identified, save that it is also necessary to promote the rehabilitation of the offender, who is still relatively young, albeit no longer a youth. For that reason, I find that there is a basis for special circumstances to promote his rehabilitation by having a longer period under supervision in the community which will also go some way to addressing the risk of institutionalisation. I note also the more onerous conditions in custody in Covid times.

21. I have indicated in the table the indicative sentences both before and after the 25% discount. I have approached the matter by considering the indicative sentences for the earlier five matters, only three of which received terms of imprisonment with two being fine only offences, and then by reason of the principle of totality and sought to determine what I considered to be the appropriate overall sentence. In doing so, and to better expose the reasoning, offending which occurred on the one occasion, for example counts 8, 9 and 10 are one occasion, and counts 11, 12 and 13 all occur on one other occasion, have indicative sentences that have been dealt with as largely concurrent when arriving at the aggregate sentence. I have also taken into account the damaged property offenses on the various Form 1s that relate to counts 2, 4, 5, 11 and 13.

22. In my view, beyond those occasions of concurrency, overall in respect of all of the offending the principle of totality does apply here because this was clearly a course of offending in which multiple offences over a relatively short period of time were committed. Plainly a lineal approach would arrive at a far disproportionate sentence far in excess of the criminality of the overall offending. At the same time it has to be noted that the offending is of serious property offending repeatedly occurring albeit on a level more low than high, includes driving offences including placing police and the public in peril as reflected in the police pursue charges, and also shows the offender to be involved in the drug supply trade as well. The offender has a range of criminal offending. I take all those matters into account in determining the overall sentence.

23. The ultimate submission for the offender was that the sentence arrived at should have a non-parole period in respect of all the offences concluding either now or in the near future. The Crown submitted that such a sentence would not adequately reflect the additional criminality of the offenses presently being considered. I accept the Crown submission in this regard. What has to date been sentenced In respect of the period April to August 2021 was only a little hyperbole could be described as the tip of the iceberg. I repeat my observations in the previous paragraph.

24. The outcome I arrive about is that for all of the offending including that which has already been sentenced the appropriate term of imprisonment is 6½ years with a 4-year non-parole period to date from 16 September 2021. The current sentence being served commences on that date, 16 September 2021 with a non-parole period of 1 year and a balance of term of 1½ years. To give effect to the agreed position as to totality and my conclusion as to the current matters being sentenced, there needs to be orders that see an effective 4-year non-parole period commencing 16 September 2021 and a balance of term of 2½ years ending 15 March 2028. That is achieved by imposing a sentence to commence on 16 September 2022 with a non-parole period of 3 years ending on 15 September 2025 and a balance of term of 2½ years ending on 15 September 2028.

Orders

25. Of the offences set out in the table below numbered one through to 17 the offender is convicted.

1. Taking into account the Form 1 matters in respect of the matters identified above the indicative sentence both before and after the 25% discount is set out in the table.

2. The offender is sentenced to a term of imprisonment to date from 16 September 2022 with a non-parole period of 3 years expiring on 15 September 2025 and with a balance of term of 2½ years expiring 15 March 2028.

TABLE

Off	Date	Max	Obj ser	Ind	Ind 25%
The first 5 offences were sentenced on 31 August 2022. An aggregate sentence of 2 ½ y tdf 16.9.21, npp 12m was imposed
a	Possess loaded firearm	10	2	18m
b	Police Pursuit	5	30m	22m
c	DWD	12m	4m	3m
d	Poss items resembling number plates	Fine only
e	Using a vehicle with unauth number plates	Fine only
The offences set out below are the offences being sentenced for on 23 February 2023
1	188(1); in short receiving stolen prop, MV; BT 50 stolen on this date, received by D in May; feature is detection by examination of mobile phone / emails	28-29.4.21	12	low	12	9
2	154F; steal trailer; caught on CCTV; uses angle grinder; discussed beforehand; attached false rego plates;	9.6.21	10	High low	8	6
3	154A(1); drive convey w/o consent; par 1-6 of facts, he used the BT 50 subject of count 1; uses it May through to July	May 21	5	mid	16	12
4	S117; larceny, winch <2K; steals winch system from front of BT50; undid bolts, smashed front of car; broke lock on storage compartment; damage 3300;	16.6.21	5	High low	12	9
5	S117; larceny, wheels; <2K cuts 3 padlocks and steel lock box to access shipping container on rural prop; takes BBQ, various other items, and 4 wheels/tyres; cut wire fence	21.6.21	5	mid	16	12
6	154A; take and drive convey w/o consent’ vehicle on side of road, and he just takes it; battery had been removed, so some effort to take; they actually give it a tow; later abandoned and found damaged	2.7.21	5	High low	16	12
7	s51B; PP, BT, exceeding speed limit; >140k; police lights on, follow, BT increases speed; travels south in north bound lane; police terminate after 5k; 8.30am on a sunday	4.7.21	5; lic	Low mid	24	18
8	112(1)(a); BES; 60K merc; forces entry lower floor; goes upstairs steals keys, wallet; steals merc; finds out satellite tracking; stolen in Korora, abandoned in Townsville 22.7.21; had discussions as to what to do with cards	7.7.21	14	Low mid	24	18
9	192J; Deal with identity info; conversation and photo of id and asking X to do what he can with it	As for 8	10	Low	4m	3m
10	154A; drive convey w/o consent	As for 8;	5	Mid	12m	9m
11	154F; steal trailer; as for 12	26.7.21	10	low	16m	12m
12	154F; steal MV, kubota; cuts padlock; and 2 lockboxes; winches kobta onto tilt trailer and drives both from scene; next day they are recovered, apparently stuck on track; its the audacity, but also fingerprints everywhere, and vehicles seem to be getting abandoned	26.7.21	10	low	16m	12m
13	117; larceny, battery; also as for 12; on same occasion; he stole the battery from the trailer	26.7.21	5	Low	4m	3m
14	154F; steal MV; landcruiser; rural prop; 3.30am; offender just drives vehicle away, having enter meathouse for keys from jacket;also tools worth 10K stolen; trailer found 31.7.21 and MV recovered 13.8.21	30.7.21	10	High low	16m	12m
Form 1 matters. For 5 of the matters there is a Form 1 of destroy prop in respect of the property the subject of the principal offence
Then 3 drug matters as follows
15	25(1); cannabis; 31.5g. The facts show 11 occasions of supply totalling this amount	10	low	12m	9m
16	25(1); meth; 36.5g; The facts show 22 occasions of supply totalling this amount	15	low	24m	18m
17	25(1); 75ml of a drug similar to GBH; 50ml is indictable; and 1kg is commercial. This was found on the search of the offender’s premises following his arrest	15	low	8mf	6m

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Decision last updated: 07 September 2023