Citation: R v Tariq McDonald [2009] NSWDC 330
Court: District Court of New South Wales
Date: 25 September 2009
Judge(s): Knox SC DCJ
Background
The offender pleaded guilty to four counts arising from two separate incidents in 2007. The first involved stealing a Nissan Patrol from Merrylands in September 2007, with the offender's DNA recovered from the vehicle. The remaining three counts arose from events in November 2007 at the Macquarie Park Shopping Centre in North Ryde.
In the November incident, the offender and two associates stole two vehicles: a Nissan Patrol and a white Ford Econovan. Working in convoy, they drove the Patrol through the shopping centre's food court in the early hours of the morning and used it to ram an ATM, dislodging it from the wall. The three then loaded the ATM into the Econovan and drove it to a nearby address. Security guards witnessed the incident and contacted police, who apprehended the offender hiding in an industrial bin. The amount of money in the ATM was never established, but the damage to the shopping centre was assessed at approximately $44,792.
The two co-offenders were never identified or apprehended. The offender declined to be interviewed by police and did not consent to a buccal swab. No restitution was offered toward the property damage.
Legal Issues
- What sentence was appropriate for the principal offence of aggravated break and enter under s 112(2) of the Crimes Act 1900, which carries a maximum of 20 years imprisonment and a standard non-parole period of five years?
- What weight should be given to planning and sophistication as aggravating factors in a ram-raid ATM theft?
- How should general deterrence be reflected in sentencing for offences of this type?
- What was the appropriate structure for a total sentence spanning four counts across two separate incidents, including the application of totality and special circumstances?
Decision
Knox SC DCJ characterised the November offending as involving substantial planning and a joint criminal enterprise among three people. The operation required stealing two separate vehicles for distinct roles in the raid, travelling in convoy to the shopping centre, and targeting a specific ATM. His Honour rejected any characterisation of the offence as opportunistic.
The court placed significant weight on general deterrence, noting an increasing frequency of ram raids in Sydney and describing them as a community harm with costs flowing to shopkeepers, consumers, and insurers. His Honour indicated that condign penalties were appropriate for this category of offending.
On the question of the offender's background, the court had regard to submissions about his youth and personal circumstances, including a history of drug use. A finding of special circumstances was made at approximately 72%, extending the ratio of the additional term to the non-parole period beyond the statutory norm, to allow for a longer period of supervision on parole.
The sentence on count 2 (the aggravated break and enter) was the operative sentence. Counts 3 and 4 ran concurrently from the same commencement date. Count 1 (the earlier car theft) was imposed as a consecutive non-parole period of 12 months, beginning after the expiry of the non-parole period on counts 2 to 4, reflecting the separate criminality of the Merrylands incident.
Orders Made
- Count 1 (taking and driving a conveyance, Merrylands): non-parole period of 12 months commencing 20 March 2011, expiring 20 March 2012.
- Count 2 (aggravated break and enter, Macquarie Park): non-parole period of 3 years and 4 months commencing 20 November 2007, expiring 19 March 2011, with an additional term of 2 years and 8 months expiring 19 November 2013.
- Counts 3 and 4 (stolen conveyance offences): fixed terms of 12 months each commencing 20 November 2007, expiring 19 November 2008.
- Counts 2, 3, and 4 to be served concurrently.
- Special circumstances found at approximately 72%.
- Offender to be released to parole on 20 March 2012, subject to conditions including good behaviour, notification of address changes, no association with persons of criminal record, and attendance at drug treatment as directed by Probation and Parole Service.
Key Takeaways
- The District Court treated the degree of planning and coordination involved in a ram-raid ATM theft as a significant aggravating factor, distinguishing such conduct from opportunistic offending and warranting a sentence above the standard non-parole period baseline.
- Where an offence involves multiple stolen vehicles, coordinated participants, and a targeted commercial facility, the sophistication of the enterprise is directly relevant to the objective seriousness of an aggravated break and enter charge under s 112(2) of the Crimes Act 1900.
- General deterrence carried particular weight in this sentencing, with the court identifying ram raids as a category of offending that imposes diffuse community costs and warrants a firm sentencing response.
- A finding of special circumstances can extend the additional term beyond the statutory ratio where an offender's rehabilitation needs, including drug treatment and supervision, justify a longer parole period.
- Separate incidents involving distinct criminal acts, even where they share a common character (vehicle theft), may attract consecutive rather than concurrent non-parole periods to reflect the totality of the criminality.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 112(2), 154A(1)(a), 154A(1)(b)
Cases:
- R v Anderson [2004] NSWCCA 39
- R v BB [2005] NSWCCA 215
- R v Ceissman [2004] NSWCCA 466
- R v Chen [2004] NSWCCA 369
- R v Crowe [2002] NSWCCA 245
- R v Dodd [2004] NSWCCA 374
- R v Douglas [2006] NSWCCA 94
- R v Huynh [2005] NSWCCA 220
- R v Roberts [2005] NSWCCA 401
- R v Warren [2003] NSWCCA 366
- Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465