R v DARCY [2020] NSWDC 166

District Court New South Wales

Medium Neutral Citation: R v DARCY [2020] NSWDC 166 Hearing dates: 1 May 2020 Date of orders: 08 May 2020 Decision date: 08 May 2020 Jurisdiction: Criminal Before: Lerve DCJ Decision: Sentenced – see paragraphs [64] to [69] Catchwords: CRIMES – sentence - Aggravated Break Enter and Commit Serious Indictable Offence - Aggravated Enter Dwelling with Intent to Steal – Goods in Custody – Larceny of a Motor Vehicle – Form 1 – lengthy criminal history – Bugmy factors Legislation Cited: Crimes Act, 1900 Criminal Procedure Act, 1986 Crimes (Sentencing Procedure) Act, 1999 Cases Cited: Attorney General's Application Pursuant to s 37 of the Crimes (Sentencing Procedure) Act 1986 No. 1 of 2002 (2002) 56 NSWLR 146 Beale v R [2015] NSWCCA 120 Bugmy v The Queen [2013] HCA 37 R v Despotovski [2010] NSWDC 110 Hunter v R [2011] NSWCCA 141 Hart v R [2014] NSWCCA 172 Imbornone v R [2017] NSWCCA 144 Jackson v R [2010] NSWCCA 162 Veen v The Queen (No. 2) (1988) 164 CLR 465 Category: Sentence Parties: Director of Public Prosecutions (for the Crown) William Warren DARCY (offender) Representation: Solicitors: Ms J Dawson (for DPP) Mr J Murray (Aboriginal Legal Service, for the offender) File Number(s): 2017/139257 Publication restriction: No

sentence 1. The offender William Darcy was committed for sentence from the Young Local Court on 22 May 2018, however the offender failed to appear on 19 October 2018 at the Wagga Wagga District Court and a bench warrant was issued on that date. The offender was arrested in respect of that warrant on 27 November 2019 and he has been in custody since that date although he is also serving a sentence imposed in the Local Court. 2. The offender appears for sentence in respect of two substantive matters, namely a charge of Aggravated Break Enter and Commit Serious Indictable Offence contrary to s 112(2) of the Crimes Act, 1900 and a charge of Aggravated Enter Dwelling with Intent to Steal, contrary to s 111(2) of the Crimes Act. The circumstance of aggravation relied in both matters is that the offender was in company. 3. In addition to those substantive charges the offender asks that in respect of the charge contrary to s 111(2) of the Crimes Act when passing sentence the court takes into account two matters on a Form 1 document. One matter is a charge of what is commonly or shortly known as Goods in Custody contrary to s 527C(1)(c) of the Crimes Act. The other is a charge of Larceny of a Motor Vehicle contrary to s 154F of the Crimes Act. The vehicle was stolen from the garage that was broken into. 4. In dealing with the charge contrary to s 111(2) of the Crimes Act and taking into account the matters on the Form 1 document I will need to give proper regard to the principles enunciated by the Court of Criminal Appeal in the Attorney General's Application Pursuant to s 37 of the Crimes (Sentencing Procedure) Act 1986 No. 1 of 2002 (2002) 56 NSWLR 146, otherwise known as the Guideline Judgment on Form 1 matters. Noting the charge of Larceny of a Motor Vehicle in particular, there must be some meaningful impact on the sentence that is ultimately imposed. 5. Further, attaching to a Certificate pursuant to s 166 of the Criminal Procedure Act, 1986 there are two matters to which the offender has pleaded guilty, namely a charge of Being Carried in a Stolen Conveyance contrary to s 154A(1)(b) of the Crimes Act and a charge of Larceny contrary to s 117 of the Crimes Act. These matters will have little impact on the ultimate sentence that is to be imposed. 6. The pleas of guilty that were entered in the Local Court were adhered to at the sentence hearing at the Wagga Wagga District Court on 1 May 2020 and accordingly the offender is entitled to the full 25% for the utilitarian value of the pleas of guilty. 7. The maximum penalty for the offence contrary to s 112(2) of the Crimes Act is twenty years imprisonment. Parliament has specified a standard non-parole period of five years in respect of that offence. I acknowledge that I am engaged in a one-step instinctive process in which two of the principal guideposts are the maximum penalty and the standard non-parole period.