Citation: R v George James Fernando [2007] NSWDC 158
Court: District Court of New South Wales
Date: 8 June 2007
Judge(s): Nicholson SC DCJ
Background
The offender was a 26-year-old Aboriginal man who, in June 2004 at age 23, participated in a series of brazen armed robberies across the New South Wales mid-North Coast. He had been released from custody only two months earlier and was living with an uncle at the Green Hills mission in Kempsey when three co-offenders arrived in a stolen vehicle and persuaded him to join them. The offender claimed he was intoxicated at the time and did not initially know the enterprise would involve robbery.
In the early hours of 6 June 2004, the group targeted small businesses in Sawtell and Coffs Harbour within a short timeframe, armed with wheel braces and wearing disguises. The offender acted as a frontman in at least one of the robberies. Victims included a security officer who was struck with a wheel brace and had his car window smashed, and a service station attendant from whom cash, a laptop, and an MP3 player were stolen.
The offender pleaded guilty in the Local Court at Moree in March 2007 to robbery in company and assault with intent to rob in company. He also asked the District Court to take into account fifteen additional charges on a Form 1 (a procedural mechanism under which extra offences are acknowledged at sentencing without separate conviction, allowing the sentencing court to consider them when fixing the overall sentence).
Legal Issues
- What was the appropriate objective assessment of the criminality involved in a coordinated series of violent robberies targeting small businesses?
- How should the offender's background as an Aboriginal man, including a disruptive upbringing, substance abuse, and a history of custody, be weighed under the principles in R v Fernando (1992)?
- What discount was warranted for the early guilty plea and other subjective factors?
- Whether special circumstances existed to justify a non-standard ratio between the non-parole period and the balance of the sentence
- How the principles of totality applied when accounting for the two principal offences and fifteen Form 1 matters
Decision
Nicholson SC DCJ assessed the objective seriousness of the offences as high. The robberies were planned, conducted in company with significant violence, targeted vulnerable victims at small businesses in the early hours of the morning, and involved the use of weapons. The court found that general and personal deterrence carried substantial weight, noting the offender had accumulated seven separate periods in custody between 1998 and 2004 and yet continued to reoffend.
The court applied the principles from R v Stanley Fernando (1992), which recognise that Aboriginal offenders who have grown up in circumstances of social disadvantage, disrupted family life, and exposure to alcohol and substance abuse may warrant some moderating of the ordinary sentencing calculus. The court accepted that the offender's early life had been genuinely difficult and that his background contributed to his circumstances at the time of the offences. However, those principles did not displace the need for a substantial term of imprisonment given the gravity of the offending.
A discount of 30 per cent was applied to reflect the early guilty plea and related matters. Without that discount, the court indicated it would have imposed nine years for the robbery in company offence. After the discount, the head sentence for that offence became six years, three months and fifteen days, with a non-parole period of three years, three months and fifteen days.
The court also imposed a fixed term of three years for the assault with intent to rob in company, structured to run partly concurrently in recognition of the totality principle. The court noted that whether the offender would actually be released at the expiry of the non-parole period was a matter for the Parole Board, not the sentencing court.
Orders Made
- Convicted of robbery in company (Bogas service station, Toormina, 6 June 2004): non-parole period of 3 years, 3 months and 15 days; balance of term of 3 years (total head sentence of 6 years, 3 months and 15 days); earliest eligible release date 29 July 2008
- Convicted of assault with intent to rob in company (Sawtell, 6 June 2004): fixed term of 3 years imprisonment, commencing 15 April 2006 and expiring 14 April 2009
- Fifteen Form 1 matters taken into account in fixing the principal sentence
- Three charges (items 8, 9 and 11) excluded from Form 1 consideration as the offender had already been convicted of those matters in the Local Court
Key Takeaways
- The District Court confirmed that the Fernando principles, which direct sentencing courts to consider the social disadvantage and background of Aboriginal offenders, do not operate to displace the need for a substantial custodial sentence where the offending is objectively serious and involves planning, violence, and multiple victims.
- A coordinated series of armed robberies on small businesses in the early hours of the morning, with weapons used against vulnerable victims, placed the offending at the higher end of the objective seriousness range for robbery in company.
- Under s 32 of the Crimes (Sentencing Procedure) Act, charges on which an offender has already been convicted in the Local Court cannot be included as Form 1 matters for the sentencing court to take into account.
- A 30 per cent discount was applied for an early guilty plea, reducing a notional starting point of nine years for the robbery in company to approximately six years and three months.
- The totality principle required the court to structure concurrent and cumulative elements of the sentences so that the overall imprisonment imposed was proportionate to the totality of the criminal conduct, including the fifteen Form 1 matters.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act (NSW), ss 12, 32
Cases
- R v Stanley Fernando (1992) 72 A Crim R 58
- Cuthbert (1967) 86 WN (NSW) Pt 1 272
- Rushby [1977] 1 NSWLR 594
- Hayes [1984] 1 NSWLR 740
- The Queen v Rause (NSW CCA, 8 August 1992)
- Desimoni v The Queen (1981) 147 CLR 383
- Attorney-General's Reference No 1 of 1999 (2004) 61 NSWLR 38