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District Court 13 October 2006

Regina v Imraaz Hudson

[2006] NSWDC 137

Assault & violenceTheft & propertyFirearms & weapons
SENTENCE AFTER TRIAL PARITY WITH CO OFFENDER

Citation: Regina v Imraaz Hudson [2006] NSWDC 137
Court: District Court of New South Wales
Date: 13 October 2006
Judge(s): Nield DCJ

Background

Late at night on 28 March 2005, the offender and a co-offender approached four young people sitting in a parked car at Shelley Beach on the NSW Central Coast. The co-offender produced a plastic replica pistol, threatened each of the four victims in turn, and demanded their wallets. The offender participated actively, picking up one victim's wallet from the ground and handing it to the co-offender. Both men were stopped by police about half an hour later in a nearby suburb, and the replica pistol and stolen property were found in the car.

The offender was tried before a jury and convicted on four counts of robbery whilst armed with a dangerous weapon, contrary to section 97(2) of the Crimes Act. The sentence hearing then turned on the appropriate length and structure of the sentences.

A key consideration was parity: the co-offender, Crompton, had already been sentenced, and the court was required to ensure the offender's sentence reflected his relative culpability without creating an unjustifiable disparity.

  • What was the appropriate head sentence and non-parole period for each count of armed robbery under section 97(2) of the Crimes Act?
  • Whether special circumstances existed to justify departing from the standard one-third parole ratio under the Crimes (Sentencing Procedure) Act?
  • Whether the sentences for four offences committed simultaneously against four different victims should be served concurrently, consecutively, or partly consecutively?
  • Whether parity with the co-offender's sentence was achieved?

Decision

The court assessed the objective seriousness of the offending as falling within the middle range. The offender was armed (with a replica pistol capable of causing fear), acted in company, and the victims were young people aged sixteen to eighteen. Against this, the replica nature of the weapon was noted, no physical violence beyond the threat itself was inflicted, and the property taken was of modest value.

On the personal circumstances of the offender, the court noted he was 23 at the time of the offences, had no prior criminal convictions of any significance, had never been imprisoned, and had experienced childhood exposure to domestic violence. The court found these matters constituted special circumstances, justifying a non-parole period of three years rather than the four years six months that would result from the standard statutory ratio. A parole period of three years was fixed for each count.

On the question of concurrency, the court accepted the Crown's submission that purely concurrent sentences would fail to reflect the fact that four separate victims were robbed. The court structured the sentences to run partly consecutively, with each three-year non-parole period commencing three months after the last, so that the non-parole periods were staggered across the four counts.

The resulting total effective sentence was six years on each count, served partly consecutively, with the earliest release date fixed at 14 February 2010. The court considered this outcome broadly consistent with the sentence imposed on the co-offender, satisfying the parity requirement.

Orders Made

  • Count 1 (offence against Mr Cotter): six years imprisonment, non-parole period of three years from 15 May 2006 to 14 May 2009, parole period from 15 May 2009 to 14 May 2012.
  • Count 2 (offence against Mr Boler): six years imprisonment, non-parole period of three years from 15 August 2006 to 14 August 2009, parole period from 15 August 2009 to 14 August 2012.
  • Count 3 (offence against Ms Collins): six years imprisonment, non-parole period of three years from 15 November 2006 to 14 November 2009, parole period from 15 November 2009 to 14 November 2012.
  • Count 4 (offence against Ms Moffitt): six years imprisonment, non-parole period of three years from 15 February 2007 to 14 February 2010, parole period from 15 February 2010 to 14 February 2013.
  • Earliest release date: 14 February 2010.
  • The offender is to be subject to supervision by the NSW Probation and Parole Service whilst on parole.

Key Takeaways

  • Where multiple robbery counts arise from a single incident involving separate victims, a sentencing court may properly structure sentences to run partly consecutively rather than wholly concurrently, to ensure the punishment reflects the number of people harmed.
  • Special circumstances under the Crimes (Sentencing Procedure) Act were established here by the combination of the offender's youth, absence of any meaningful criminal history, and the fact he had never previously been imprisoned, each factor supporting a longer parole period.
  • The replica nature of a weapon does not remove the offence from the ambit of armed robbery under section 97(2) of the Crimes Act, but it is a relevant consideration in assessing objective seriousness.
  • Parity with a co-offender's sentence remains a live issue even after trial, and a sentencing court must calibrate the sentence to reflect the relative culpability of each participant.
  • Minor traffic convictions from several years earlier were treated by the District Court as having no bearing on the sentencing exercise for serious indictable offences.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(2) (robbery whilst armed with a dangerous weapon)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A

Cases:
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111