Lawlis v R

Catchwords: CRIME – Appeals – Appeal against sentence – whether sentencing judge erred by finding that general deterrence weighed heavily on the sentence – appeal allowed – resentence

Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Procedure Act 1986 (NSW)

Cases Cited: Abdulrahman v R [2016] NSWCCA 192
Ahmad v R [2021] NSWCCA 30
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Chan v R [2023] NSW CCA 206
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Mandranis v R [2021] NSWCCA 97
Miller v R [ 2015] NSWCCA 86
Parente v R [2017] NSWCCA 284
Potts v R [2017] NSWCCA
R v Maher [2004] NSWCCA 177
Robertson v R [2017] NSWCCA 205
Totaan v R [2022] NSWCCA 75

Category: Principal judgment

Parties: Joel Lawlis (Applicant)
Crown (Respondent)

Representation: Counsel:
D Roff / J Razi (Applicant)
B Costello (Respondent)
Solicitor:
Blaxland Law (Applicant)
Office of the Director of Public Prosecutions (NSW)

File Number(s): 2022/189292

Publication restriction: N/A

JUDGMENT

1. THE COURT**:** After the hearing of this appeal, on 3 November 2025, the Court made orders allowing the appeal, quashing the sentence imposed in the District Court and in lieu thereof and taking into account time served in custody, imposed a sentence of 15 months imprisonment. The sentence commenced that day and the Court ordered that Mr Lawlis serve the new sentence by way of an Intensive Corrections Order (ICO). These are the reasons for the orders made.

2. Joel Lawlis appealed against the aggregate sentence of 3 years and 4 months imprisonment with a non-parole period of 1 year and 8 months imposed upon him by Judge Abadee in the District Court. The sentence commenced on the day it was imposed, 12 September 2024. The non-parole period was to expire on 11 May 2026.

3. Mr Lawlis was sentenced for two offences of breaking and entering a dwelling house and stealing a motor vehicle, in circumstances of aggravation, being that he knew there were people present inside. Those offences occurred on 10 November 2020 and 18 January 2021. Each offence had a maximum penalty of 20 years imprisonment and a standard non-parole period prescribed of 5 years imprisonment. He was also sentenced for four offences on a certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW). There were three offences of stealing a motor vehicle, being two motorcycles and a Volkswagen Golf, and one of taking and driving a motor vehicle without the consent of its owner. The car stealing offences had a maximum penalty of 10 years imprisonment and the take and drive offence a maximum penalty of 5 years imprisonment, although they were all subject to the jurisdictional limit of the Local Court of 2 years imprisonment. Those offences, as the sentencing judge observed, represented “the fruits of the break and entering offences”.

Grounds of Appeal

4. Mr Lawlis sought leave to rely on three grounds of appeal:

“Ground 1 – The sentencing judge erred by finding that general deterrence weighed heavily on the sentence.

Ground 2 – The sentencing judge erred by approaching community protection as a matter that weighed against the applicant.

Ground 3 – The sentence imposed was manifestly excessive.”

Remarks on Sentence

5. Judge Abadee sentenced Mr Lawlis on the day he heard the sentence proceedings.

6. His Honour applied a 5% discount to the sentence he indicated for each offence for Mr Lawlis’s guilty pleas to the offences 10 days before his trial was due to commence.

7. His Honour summarised the agreed facts, which are further summarised as follows.

8. The first break and enter offence occurred on 10 November 2020 at a home in Illawong. The occupant of the home owned three motorcycles which were parked in the garage. The two which were stolen were valued at $15,000 and $6000. On 8 November 2020 the victim advertised a car and motorcycle for sale. In the course of people responding to the advertisement he supplied his home address. Beginning in the early morning of 9 November 2020 three co-offenders communicated by telephone calls and text messages, discussing break and enters and who would participate. Mr Lawlis’s name was mentioned. In the early hours of 10 November, Mr Lawlis and four other young men went to the home, in a car owned by one of the co-offenders' mothers. The garage door was damaged, locks securing the motorcycles were broken and the motorcycles wheeled outside. One of the stolen motorcycles was put in the car and the other was ridden away by two members of the group.

9. The second break and enter offence occurred on 18 January 2021 at a home in West Hoxton. The occupant of the home owned a Volkswagen Golf motor vehicle valued at $48,000, which was parked in the driveway. At about 2:30AM on 18 January 2021 Mr Lawlis and three co-offenders arrived at the premises. The victim had gone to bed the previous evening with the property entry points closed and locked. The side gate to the property was forced open and the premises were entered by damaging the lock on the rear fly screen and glass sliding doors at the back of the house. Mr Lawlis did not enter the house. The keys to the Golf and another car, a Hyundai Elantra, parked in the driveway, were stolen. The Hyundai, which was parked behind the Golf, was moved and parked nearby. The Golf was driven away. Later that day, at about 6:20PM, the Golf was seen parked near the residence of one of the co-offenders. Two men, wearing balaclavas and gloves, ran to and entered the car. Police suspected they were two of the co-offenders.

10. At 7:50PM Mr Lawlis and a co-offender had a telephone conversation. The co-offender told Mr Lawlis he had obtained some money for him and told him to lie to another co-offender, to deprive the other co-offender of his part of the proceeds of the sale of the car.

11. Judge Abadee noted that Mr Lawlis told a psychiatrist, Dr Smith, that he “was going out… found a house where cars were, saw money, was getting stuck with them and sometimes being stuck with them and selling them cheaper so I could get on”. His Honour noted that in a Sentencing Assessment Report and a letter of apology Mr Lawlis said his motive for the offences was to fund his drug addiction.

Objective seriousness of the offences

12. In assessing the two break and enter and steal offences as “below the mid-range, but not at the lowest end”, his Honour found there was a moderate level of pre-planning, although not necessarily very sophisticated, indicated by messages within the groups and the organisation of implements to break locks and vehicles to collect vehicles anticipated to be stolen; and there was some minor damage to the properties involving locks. His Honour found both of the offences occurred over a short period of time and there were not repeated incursions into the same properties. His Honour found it was not possible to distinguish Mr Lawlis’s role from those of his co-offenders.

13. His Honour noted that Mr Lawlis was not on conditional liberty or bail at the time of the offences.

14. His Honour found that the offences were aggravated by being committed in company, being committed in the homes of the victims and being committed for financial gain. His Honour found the offences were not part of a planned or organised criminal activity, that the level of planning was not any higher than would be contemplated for offending of the kind.

Subjective factors

15. Mr Lawlis was 21 years old at the time of the offences and 25 at the time of sentence. His Honour stated:

“The offender remains young and that fact alone usually renders considerations of general deterrence and retribution of less significance and elevates the significance of rehabilitation; the law recognises the potential for cognitive, emotional and psychological immaturity of a young person contributing to offending.”

16. Mr Lawlis is an Indigenous man. His Honour recounted most of Mr Lawlis’s background from a report by psychiatrist Dr Calum Smith. During Mr Lawlis’s childhood his father was in gaol for much of the time. When Mr Lawlis was aged 14 or 15, he was sexually abused by an officer in juvenile detention. He became depressed and subject to flashbacks. He began to use cannabis and the drug ‘ice’ to block out the effects of the assault. He committed crimes to fund his drug addiction. Mr Lawlis told Dr Smith that after he was released from gaol (which was in September 2022) he had begun to see drug and alcohol and psychology counsellors, and had tried medications, but they caused him migraines. He and his partner had recently had a child (who was four months old when Dr Smith interviewed Mr Lawlis in March 2024) and he had been “clean” since he was released from gaol. He was motivated to be a role model for his daughter.

17. Dr Smith diagnosed Mr Lawlis with a substance use disorder and symptoms of complex trauma. He considered that his drug dependence motivated his criminality and that he was likely to have been intoxicated by crystal methamphetamine at the time of the offences.

18. Dr Alexey Sidorov, psychiatrist, had prepared a report for the State, for Mr Lawlis’s civil proceedings about his assault in juvenile detention. Dr Sidorov considered that Mr Lawlis had an Antisocial Personality Disorder, Amphetamine Use Disorder, symptoms of Post-Traumatic Stress Disorder and an intellectual disability.

19. His Honour accepted a submission about Mr Lawlis’s drug addiction and offending, which invoked the principles from Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 (“De La Rosa”) and stated that his findings could also be reached by the application of the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (“Bugmy”). His Honour found:

“This case is not one, in my view, of an offender’s exercise of free choice in entering into drugs before becoming an addict. It was a misguided attempt to cope with his condition and with his severely traumatic experiences. In turn, it contributed to certain disorders affecting and impairing the offender’s executive functioning. I accept on the probabilities, and not looking at the matter too finely, that there is a connection between his conditions and his offending which serves to reduce his moral culpability and makes the offender less than a fully appropriate vehicle for general and specific deterrence. Acknowledging these matters, and particularly in view of the circumstance that the offending occurred when the offender was actually intoxicated at the time (which is not itself a mitigating factor), on the other hand, the concern of his absence of control does, however, bring to bear a concern of the need for community protection. That particular factor is, however, affected by certain aspects of his subjective case to which I return later in these remarks”.

20. Judge Abadee noted that Mr Lawlis’s criminal history disclosed ten prior convictions, and that he had been incarcerated by Campbelltown Local Court in December 2021 for like offending to the two break, enter and steal counts. His Honour also noted three infractions since 2021 in Mr Lawlis's custodial history. His Honour found, on the basis of the Crown's submission and acceptance on behalf of Mr Lawlis, that his record disentitled him to leniency.

21. It is worth noting that Mr Lawlis’s prior record was not lengthy and that some of the offences had occurred after the offences for which he was sentenced by Judge Abadee, although he was sentenced for them before he was sentenced in the District Court. His first offences in 2020 were three driving offences and having custody of goods suspected of being stolen. In 2020 he committed two aggravated break enter and steal offences for which he was sentenced in October 2021 to two Community Correction Orders. He was sentenced on the same date to another Community Correction Order for an offence in February 2021 of having suspected stolen goods. In March 2021 he committed an offence of an aggravated break, enter and steal and a steal motor vehicle offence, and they were the offences for which he was sentenced to imprisonment in December 2021.

22. His Honour noted that Mr Lawlis took responsibility for his offending, did not blame his co-offenders, expressed concern about harm to the victims and was remorseful. His Honour noted that Mr Lawlis said he did not want his past difficulties in life to shape the rest of his life and he was determined to build a life for his family.

23. On Mr Lawlis’s prospects of rehabilitation, his Honour referred to Mr Lawlis’s partner of seven years who had a steady job, his positive relationship with his immediate family, his employment with his brother-in-law, an offer of employment, Dr Smith's opinion that Mr Lawlis’s post offending conduct and attitudes represented "something of a turnaround", his having shown initiative in obtaining a mental health plan and becoming abstinent, the latter of which was key to his rehabilitation. His Honour found that based on Mr Lawlis's remorse and his positive reported response to his supervision since his release his prospects of rehabilitation were good.

24. Relevant to Grounds 1 and 2, his Honour stated the following:

“I have taken into account the sometimes conflicting considerations in s 3A. As the offender’s lawyers submitted, the nature of the offending is such that considerations of general deterrence and denunciation weigh heavily in the exercise, even if moderated on account of the offender’s mental condition. The offender himself acknowledged that his record was such as to also require a sentence which accords weight to personal deterrence. I agree with this but would also add that for offences of this kind, further significant weight should be accorded to acknowledge the harm to the victims and also to protect the community (notwithstanding promising signs of the offender’s rehabilitation). Both parties also emphasised that in the circumstances of this offender, including his relatively young age, a sentence promoting the offender’s rehabilitation was also significant. I accept the last submission.”

25. His Honour noted a submission on behalf of Mr Lawlis that his sentence of imprisonment should not be longer than three years and for him to serve such sentence by way of Intensive Correction Order would be in the community’s long-term best interests, protecting the community and assisting Mr Lawlis to maintain his abstinence and rehabilitation.

26. Although his Honour did not refer to it in his remarks on sentence, we note that in the Crown's written submissions, the Crown had submitted that if the overall sentence imposed was less than three years, a lengthy ICO would be within range and would achieve all of the relevant purposes of sentencing. In oral submissions the Crown prosecutor said that upon receipt of Mr Lawlis's subjective material an Intensive Correction Order may be even more appropriate than it was at the time of preparing the Crown's written submissions.

27. His Honour stated that there should be a "not insubstantial allowance for cumulation" in the sentences for the two break enter and steal offences; that there should be substantial concurrence between the sentences for the break enter and steal offences and the car stealing offences on the s 166 certificate, as the latter represented the fruits of the breaking and entering offences. However, his Honour stated that some level of accumulation was warranted in the stealing offences to recognise the “intrinsic value of each vehicle to the owner.”

Ground 1 – the sentencing judge erred by finding that general deterrence weighed heavily on the sentence.

The Applicant’s submissions

28. The applicant made two submissions in support of Ground 1. The first was that in stating "As the offender's lawyers submitted, the nature of the offending is such that considerations of general deterrence and denunciation weigh heavily in the exercise, even if moderated on account of the offenders mental condition" his Honour misstated or misunderstood the submission made by Mr Lawlis’s counsel on sentence. The second was that in that statement his Honour gave prominence to general deterrence because of the nature or class of offending, not because of the particular offender. He relied on the statement of Bell CJ in Totaan v R [2022] NSWCCA 75 at [130]:

"The need for general deterrence in any given case, however, must always be assessed by reference to the personal circumstances of the offending and which may have operated on the offender."

29. Counsel submitted that to find that general deterrence must weigh heavily in a sentence because of the nature of the offending, despite a subjective case that calls for a reduced role for general deterrence, risks constraining the sentencing discretion, which this Court said was not appropriate in Robertson v R [2017] NSWCCA 205 per Simpson J at [89] and Parente v R [2017] NSWCCA 284 at [101].

The Crown’s submissions

30. The Crown relied on statements of this court about the importance of general deterrence when sentencing for break and enter and steal offences: R v Maher [2004] NSWCCA 177 at [43] – [44]; Miller v R [2015] NSWCCA 86 at [62]; Abdulrahman v R [2016] NSWCCA 192 at [78] and Potts v R [2017] NSWCCA 10 at [23].

31. The Crown submitted that the applicant's complaint in Ground 1 was about the weight given to general deterrence by the sentencing judge rather than error, the former being not a proper ground of appeal: Ahmad v R [2021] NSWCCA 30 at [18].

32. The Crown also submitted that a degree of latitude should be extended to the analysis of sentencing remarks which were delivered ex tempore.

Consideration

33. This submission made by counsel for Mr Lawlis before Judge Abadee was "It is conceded that, for offences such as these, where such offences take place in a victim’s home, involving groups of persons, general deterrence should be given appropriate consideration and a sentence denouncing the offender's conduct should be imposed”.

34. His Honour stated:

"As the offender’s lawyer submitted, the nature of the offending is such that considerations of general deterrence and denunciation weigh heavily in the exercise…".

35. The Crown submitted that His Honour did not make an error in repeating the submission by counsel for Mr Lawlis, because the submission by counsel that general deterrence should be given appropriate consideration should be construed, in accordance with the authorities referred to above, as general deterrence weighing heavily in the sentencing exercise.

36. We understand that mistakes can be made when a judge delivers e**x tempore sentence remarks. In this case, Judge Abadee delivered a thorough sentence judgment. However his Honour misstated the submission made on behalf of Mr Lawlis, and thus appears to have misconstrued the submission. In that regard his Honour permitted an irrelevant matter to affect his sentencing of Mr Lawlis, an error within H**ouse v The King (1936) 55 CLR 499; [1936] HCA 40.

37. Error having been shown, this court must resentence Mr Lawlis: Kent**well v The Queen (2014) 252 CLR 601; [2014] HCA 37. It is therefore unnecessary for the court to deal with appeal grounds two and three.

Resentence

38. In resentencing Mr Lawlis this court was not asked to depart from the findings of objective seriousness made by Judge Abadee, or any other findings. We take into account the number of offences, their circumstances and their maximum penalties.

39. We take into account that at the time of the offences Mr Lawlis was young, at 21. He is an indigenous man. His record at the time of sentence was not long, and some of those offences had occurred after the offences the subject of this appeal. He did commit similar offences of a break, enter and steal and a car stealing offence shortly after the second offence the subject of this appeal. He was sexually abused in juvenile detention as a teenager and thereafter resorted to drug use to deal with that trauma. He has been diagnosed with the mental health conditions referred to at paragraphs [17]-[18]. Those combination of factors reduce his moral culpability and make him a less appropriate vehicle for general and specific deterrence (as Judge Abadee found). He was not on conditional liberty at the time of the offences the subject of this appeal.

40. After his release on parole in September 2022 he remained offence free while on parole and bail. He obtained a mental health plan, attended a psychologist, and remained abstinent from drugs. His young child born during that time has motivated him to continue his abstinence from drugs and his non-offending lifestyle. His partner of many years is a support in that regard. He has a history of employment and had an offer of employment on his release from custody (at the time he was sentenced). He had remorse for, and insight into the effects of, his offending.

41. Noting the nature of his offences, but that he had embarked on the path to rehabilitation, protection of the community, or community safety, is likely to be better addressed by Mr Lawlis continuing his rehabilitation in the community so that his further rehabilitation reduces his risk of reoffending. It is the opinion of the experts who provided reports about Mr Lawlis that the key to his not reoffending is abstinence from drugs. That will likely require, as well as his family's support and motivation, that he deal with his trauma by means other than illicit drug use.

42. Mr Lawlis provided an affidavit for the court to consider in the event of resentencing him. He says that since April this year he has been completing the Intensive Drug and Alcohol Treatment Program, which was available to him from that time. He said he has used the program to continue his rehabilitation and remain abstinent from drugs. He acknowledged "drug issues are lifelong" and that he will have to work on that issue for the rest of his life. He said he is proud of his progress since five years ago and hopes to continue his rehabilitation in the community. While in custody he has taken pride in engaging in indigenous painting and taken part in an art competition.

43. For a young man he shows insight and a positive attitude to continuing his rehabilitation. He has been able to redirect his life before he became entrenched in criminal activity.

44. Applying the 5% discount for Mr Lawlis’s pleas of guilty we indicate the following sentences for each offence:

45. Count 1, 18 months imprisonment with a 12 month non-parole period;

46. Count 2, 18 months imprisonment with a 12 month non-parole period;

47. Sequence 2, 7 months imprisonment;

48. Sequence 3, 6 months imprisonment;

49. Sequence 6, 9 months imprisonment;

50. Sequence 10, 6 months imprisonment.

51. Taking the same approach as Judge Abadee did, that the car stealing offences were the “fruits” of the break, enter and steal offences, there should be substantial concurrence between the sentences for those offences and the sentences for the break, enter and steal offences, and a small degree of accumulation between each of the car stealing offences and some accumulation of the two break, enter and steal offences.

52. The aggregate sentence is 28 months and 3 weeks imprisonment. We consider it appropriate that Mr Lawlis serve that sentence by way of an Intensive Correction Order, that course being more likely to address his risk of reoffending and advance community safety: s 66 of the C**rimes (Sentencing P**rocedure) A**ct 1999 (NSW).

53. An Intensive Correction Order commences on the date on which it is made: s 71 of the Crimes (Sentencing Procedure) Act 1999. Mr Lawlis has been in custody since 12 September 2024, being 13 months and three weeks. In order to avoid injustice to him by giving him due credit for that time served in custody, and to comply with s 71, we have deducted the period in custody of 13 months and three weeks from the aggregate sentence to reach a sentence of 15 months imprisonment, to be served by way of an Intensive Correction Order: Mandranis v R [2021] NSWCCA 97; Chan v R [2023] NSW CCA 206.

54. Therefore, on 3 November 2025 the Court made the following orders:

55. Grant leave to appeal.

56. Allow the appeal.

57. Quash the sentence imposed in the District Court on 12 September 2024.

58. Taking into account the time served in custody, sentence Joel Lawlis to 15 months imprisonment, commencing today 3 November 2025 and expiring 2 February 2027.

59. Pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999, the sentence imposed is to be served by way of an Intensive Corrections Order.

60. The standard conditions of the order apply, namely:

(1) the offender must not commit any offence; and

(2) the offender must submit to supervision by a Community Corrections Officer.

7. The following additional conditions apply:

(1) the offender must participate and maintain his participation in any programs and treatment facilitated by the Community Corrections Service, for psychological therapy and/or other treatment appropriate for trauma and substance abuse issues, as your treating doctors consider appropriate, for so long as the doctors consider appropriate, within the term of the Order.

(2) for the term of the Order, the offender must not take any illicit drugs or drugs not prescribed for you by a doctor.

8. Within 48 hours of his release from custody, the offender must report to the Community Corrections Office nearest to his residence.

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