R v Blair; R v Fritz; R v Gordon [2022] NSWDC 660

District Court New South Wales

Medium Neutral Citation: R v Blair; R v Fritz; R v Gordon [2022] NSWDC 660 Hearing dates: 25 October 2022 Date of orders: 16 November 2022 Decision date: 16 November 2022 Jurisdiction: Criminal Before: Priestley SC, DCJ Decision: See [49-51.(4), 77-79.(4), 112-114] Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1900 (NSW) Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 R v Burrow [2017] NSWCCA 45 R v Alferlink [2021] NSWDC 473 Lloyd v R [2022] NSWCCA 18 R v Millwood [2012] NSWCCA 18 Hoskins v R [2021] NSWCCA 169 Texts Cited: Attorney General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ Category: Sentence Parties: Rex (Crown) Blair (Co-Offender) Fritz (Co-Offender) Gordon (Co-Offender) Representation: Solicitor Campagna for Gordon

Council: Davies for Blair, Kumarasinhe for Fitz Counsel: For Blair File Number(s): 2021/00307512, 2021/00298003, 2021/00280721

JUDGMENT

Introduction 1. Each of the co-offenders are charged with two offences, namely destroying/damaging property in company in contravention of section 195(1A)(a) of the Crimes Act, which has a maximum penalty of 6 years imprisonment and no standard non-parole period, and using an offensive weapon in company with the intention to commit an indictable offence of intimidation in contravention of section 33B(2) of the Crimes Act which has a maximum penalty of 15 years with no standard non-parole period. In relation to the co-offenders Liam Gordon and Jordan Blair only, there is a further offence of aggravated break and enter and commit a serious indictable offence in company, namely assault occasioning actual bodily harm, in breach of section 112(2) of the Crimes Act which has a maximum penalty of 20 years imprisonment and a standard non-parole period of 5 years. 2. I take the maximum penalties and the standard non-parole period in relation to Mr Gordon and Mr Blair into account as legislative guideposts indicating the view of the legislature as to the seriousness of the offending to assist in arriving at the appropriate sentences. In that regard I note that the standard non-parole period is a legislative guide for all cases and is not only relevant where the offending falls in the middle range of objective seriousness. 3. In respect of the case of Mr Blair only there is a matter to be dealt with by way of the Form 1 procedure being the offence of larceny of a value of less than $2000 which is to be taken into account when sentencing for the offence of aggravated breaking and entering and committing a serious indictable offence in company. I note the maximum sentence for a larceny matter is 5 years. In relation to the Form 1 procedure, which as noted is relevant only to Mr Blair, 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. 4. The offending occurred on 2 October 2021. Mr Gordon was arrested on that day and has been in custody from that date to the present time in respect of this offending only. Mr Fritz was arrested on 20 October 2021 and has been in custody for this and other matters in the period between then and now. Mr Blair was in custody from 20 December 2021 upon his arrest until 7 June 2022. At the time of the offending Mr Gordon was on bail for other offending. The other two offenders were not on conditional liberty. 5. These reasons will first set out the facts common to all three and then identify further facts relevant to Mr Blair and Mr Gordon and will then deal with the respective subjective cases of the offenders.