Multiplicity of Offences is Not a Circumstance of Aggravation

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By Paul Gregoire and Ugur Nedim

Dylan Gray had quite a week back in mid-August 2015. On the 9th of that month, the 29-year-old attended the Precious Metal Exchange, where he signed a document indicating ownership of three gold pendants and a necklace. He then proceeded to sell the jewellery, despite not owning it at all.

On 12 August, four plain clothed police officers noticed Mr Gray get out of a white hatchback and make his way down the side of a residential premises in Carlingford. After smashing a rear window in an unsuccessful attempt to gain entry, he reappeared on the street, got into his car and drove off.

The officers activated the lights and sirens of their unmarked vehicles and pursued Gray, until the suspect pulled over. The officers got out of their cars and approached the vehicle Gray was in. The suspect then accelerated in the officers’ direction, narrowly missing them, as he made his escape.

On 15 August, Mr Gray was captured on CCTV footage entering a building on Sussex Street in central Chinatown, where he initially forced his way into a mortgage broker’s office with a flat-head screwdriver and left without taking anything.

Gray then broke into another office next door. He picked up a duffle bag and filled it with electronic goods worth $7,750. He was captured on the security cameras leaving the building with his booty.

The aftermath

On 9 June 2016, the defendant pleaded guilty in Parramatta Local Court to three break and enter offences. These included two counts of break and enter with intent to steal, contrary to section 113(1) of the Crimes Act 1900, which carries a maximum penalty of 10 years’ imprisonment.

Mr Gray also pleaded guilty to one count of break, enter and steal, under section 112(1) of the Crimes Act. The maximum penalty for this offence is 14 years behind bars.

The matters were then committed to the Sydney West Trial Courts, also known as Parramatta District Court, for sentencing.

When sentencing for the failed break and enter with intent to steal in Carlingford, the court took into account two further offences relating to the sale of the jewellery. These were unlawfully obtaining goods and furnishing a false statement to a licensee.

The District Court also dealt with an additional offence of reckless driving contrary to section 117(1) of the Road Transport Act 2013. This was in relation to the incident where Gray drove his car in the direction of the police officers.

An individual found guilty of this offence is liable to 9 months imprisonment and/or a fine of $2,200, along with an automatic three year licence suspension.

At risk of reoffending

During sentencing, it was heard that Mr Gray had a lengthy criminal record, involving mainly property offences, which were committed to support his heroin dependency. At the time of his most recent offending spree, the defendant was on parole after having spent three years inside for these types of offences.

NSW District Court Judge John Hatzistergos accepted that Gray had good familial support, but found that the offender’s substance abuse and long history of offending made his prospects for rehabilitation “at best guarded.”

His Honour assessed the objective seriousness of the break and enter crimes as “just below the mid-range of offending” and the reckless driving offence as falling within the high range, even though it was conducted over a relatively short period of time.

Factors that lengthened the sentence

The judge considered the multicity of property crimes as an aggravating factor by Judge. The fact that Gray was on conditional liberty at the time was also seen as a factor of aggravation.

His Honour applied the principle set out in Frigiani v R, which meant the aggravating factor of being on parole was enhanced in relation to the offences, as Gray was on parole for similar property offences.

On 16 December 2016, Judge Hatzistergos gave Mr Gray an aggregate sentence of 5 years’ imprisonment, with a non-parole period of 3 years and 9 months. This sentence included a 25 percent discount for the utilitarian value of his early guilty pleas.

It wasn’t a single offence

Mr Gray appealed his sentence to the NSW Criminal Court of Appeal (NSWCCA) on 5 March this year. He did so on three grounds. The first was that the judge made an error when taking into account the multiple offences as an aggravating factor.

Section 21A(2)(m) of the Crimes (Sentencing Procedure) Act 1999 lists a circumstance of aggravation as where an “offence involved multiple victims or a series of criminal acts”.

But as the Crown conceded on appeal, this did not apply to Gray’s situation has his “acts” were each prosecuted as separate offences, rather than as a single crime.

In that regard, NSWCCA Justice Stephen Campbell pointed to R v Tadrosse, where Justice Roderick Howie explained that it is “illogical” to consider multiple offences as an aggravating factor when an offender is being sentenced separately for each offence.

As it was clear a sentencing error had taken place, it was now up to the appeals court to decide whether a lesser sentence should be imposed, so it was unnecessary to consider the other grounds of appeal, Justice Campbell found. However, he did want to add one more point.

The Frigiani principle

The principle established in Frigiani was that when an offender commits a crime on parole it’s an aggravating factor regardless of the offence the parole was imposed for. However, when the prior offence is similar to the one being sentenced for the aggravation is increased.

The second ground argued by Mr Gray’s lawyer was that the sentencing judge was right to apply this principle to the three break and enter offences, but he had made an error when he took it into consideration when imposing the sentence for the reckless driving offence.

However, Justice Campbell said it was clear that Judge Hatzistergos had assessed the objective seriousness of the reckless driving charge as high range in itself and there was no indication that he found the aggravation of offence more enhanced due to the crimes he was on conditional liberty for.

His Honour then reiterated that as the first ground had been made out, it was “pointless” in considering the third ground, which was that the sentence was manifestly excessive.

A lesser sentence imposed

According to Justice Campbell, the central issue in considering the new sentence was Gray’s “poor record,” which was inextricably linked to his substance use issues.

The justice pointed out that last December a custodial punishment was imposed upon Gray as he failed a drug test whilst in prison. However, he also mentioned that the offender had successfully participated in a compulsory drug treatment program in July last year.

Even with the encouraging elements, Justice Campbell continued, one must be wary of Mr Gray’s risk of reoffending. But, he added that he was prepared to find that progress was being made, “even if at the rate of two steps forward and one back.”

On 6 July, Justice Campbell allowed the appeal and quashed the District Court sentence. A new sentence of 4 years and 4 months, with a non-parole period of 3 years and 3 months, was imposed. Justices Robert MacFarlan and Peter Johnson agreed with these orders.

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