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District Court 14 November 2008

R v Abdullah TERKMANI

[2008] NSWDC 358

Assault & violenceTheft & property
CRIMINAL LAW SENTENCE FOUND GUILTY BY JURY STANDARD NON PAROLE PERIOD AGE AS MITIGATING FACTOR

Citation: R v Abdullah Terkmani [2008] NSWDC 358
Court: District Court of New South Wales
Date: 14 November 2008
Judge(s): Cogswell SC DCJ

Background

The offender was convicted by jury of aggravated break, enter and commit a serious indictable offence, contrary to section 112(2) of the Crimes Act 1900. The underlying serious indictable offence was assault occasioning actual bodily harm. The maximum penalty for this offence is 14 years imprisonment, and Parliament has prescribed a standard non-parole period of five years.

On the evening of 15 December 2004, the offender and a co-offender attended a residential property demanding to know the whereabouts of the householder's flatmate. When turned away, the offender threw a brick through the front window, produced a knife, and forced entry. Both men then assaulted the householder, leaving him with a black eye, a bleeding nose, and a tooth driven through his lip. The co-offender also produced a syringe and threatened the occupants with it. The offender was later identified through DNA left on the brick.

The offender did not plead guilty and was convicted following a jury trial. Sentencing proceeded before Cogswell SC DCJ in August and November 2008.

  • Whether the standard non-parole period of five years applied, or whether reasons existed to depart from it
  • How to assess the objective seriousness of the offence, having regard to multiple circumstances of aggravation
  • Whether the co-offender's use of the syringe could be attributed to the offender as a separate aggravating factor
  • Whether the offender's youth, first-time custody status, and rehabilitation prospects constituted special circumstances justifying variation of the standard non-parole to balance-of-term ratio
  • What overall sentence was appropriate in the absence of a guilty plea discount

Decision

The court's primary task was to determine whether the standard non-parole period of five years should apply, following the approach set out by the Court of Criminal Appeal in Regina v Way (2004) 60 NSWLR 168. That approach requires the sentencing judge to consider both the objective seriousness of the offence and the statutory aggravating and mitigating factors under section 21A of the Crimes (Sentencing Procedure) Act 1999.

After weighing the aggravating circumstances, the court concluded that the offence did not fall in the middle of the range of objective seriousness. Although multiple aggravating factors were present, including the offence being committed in company, the offender's knowledge that persons were inside, the use of a knife, and planning, the court found the overall seriousness did not reach the midpoint that would attract the full standard non-parole period. Accordingly, the court determined there were reasons to depart below that benchmark.

On the syringe, the court was not satisfied beyond reasonable doubt that the offender knew his co-offender was carrying it when they entered the premises. It therefore declined to treat the syringe as a separate offensive weapon attributable to the offender. However, the court did take the syringe's production into account as part of the inherent risk of committing an offence in company, noting that co-offenders can act in ways an offender cannot always anticipate or control. This aggravating weight was moderated slightly by the fact that the offender himself suggested they leave when the syringe was produced.

The court found special circumstances justifying a departure from the standard one-third ratio between non-parole period and balance of term, citing the offender's youth, the fact that this was his first period in custody, and his prospects of rehabilitation. An overall sentence of four years was imposed, with a non-parole period of two years.

Orders Made

  • Total sentence of four years imprisonment, commencing 27 August 2008 and expiring 26 August 2012
  • Non-parole period of two years, from 27 August 2008 to 26 August 2010
  • Balance of term of two years, from 27 August 2010 to 26 August 2012
  • No parole orders made (sentence exceeds three years; matter referred to the Parole Authority)

Note: This sentence was subsequently appealed. See R v Terkmani [2009] NSWCCA 142.

Key Takeaways

  • The District Court applied the Regina v Way framework, asking whether reasons existed to depart from the standard non-parole period by assessing both objective seriousness and the statutory aggravating and mitigating factors under section 21A.
  • A co-offender's use of a weapon cannot be attributed to the offender as a separate aggravating circumstance unless the court is satisfied beyond reasonable doubt that the offender knew of it; however, it may still be relevant to the aggravating feature of committing the offence in company.
  • Committing an offence in company is treated as aggravating in part because an offender assumes a degree of risk over unpredictable acts by co-offenders, even where those acts exceed what was planned or foreseen.
  • Where an offence involves multiple aggravating circumstances but the court is not satisfied the overall seriousness reaches the midpoint of the range, the standard non-parole period will not automatically apply.
  • Youth, a first period in custody, and rehabilitation prospects remained available as grounds for finding special circumstances, thereby justifying a longer balance of term relative to the non-parole period.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A

Cases
- Regina v Way (2004) 60 NSWLR 168
- Regina v Joel Tory; Regina v Luke Tory [2006] NSWCCA 18
- Regina v Millar [2005] NSWCCA 202
- Regina v Price [2005] NSWCCA 285
- R v Terkmani [2009] NSWCCA 142 (appeal from this decision)