Citation: R v Christopher Dulanas [2011] NSWDC 102
Court: District Court of New South Wales
Date: 11 July 2011
Judge: Cogswell SC DCJ
Background
The offender, Christopher Dulanas, appeared for sentence on three counts arising from two separate incidents in Sydney's George Street entertainment precinct in August 2009. He was 29 years old at the time of sentencing and had a significant criminal history dating from age 18, including prior convictions for robbery, demanding property by force in company, and grievous bodily harm.
The first two offences occurred on the same night at a games arcade, where the offender confronted two 19-year-old men, threatened to shoot them while keeping his hand in his jacket pocket, and obtained a credit card PIN from one victim and a mobile phone from the other. Both incidents were captured on CCTV. Less than a week later, the offender committed the third offence at another nearby arcade, where he and two companions confronted a third victim, physically assaulted him, attempted to take his wallet, forced him into a shop window and kicked him in the face while he lay on the ground.
Critically, all three offences were committed while the offender was on bail for stealing from the person and related matters. He pleaded guilty at the earliest opportunity and, while in custody, undertook rehabilitation, employment and further education courses.
Legal Issues
- What weight should be given to the guideline judgment in R v Henry (1999) when determining the appropriate starting point for sentence?
- How should the offending in company, commission while on bail, and prior criminal history affect the sentence?
- What mitigating effect, if any, should be given to the early guilty plea, the offender's drug dependency at the time, and his steps toward rehabilitation in custody?
- How should the sentences for the three offences be structured, including the extent of accumulation versus concurrency?
- Whether special circumstances existed to justify adjusting the ratio between the non-parole period and the balance of term.
Decision
His Honour assessed the objective seriousness of each offence as slightly below the midpoint of the relevant range. While the demand with menaces offences involved threats of shooting and the physical handling of a victim's property, they did not involve actual weapons. The assault with intent to rob in company was more serious given the physical violence inflicted, including a kick to the face while the victim lay on the ground, but the overall robbery was ultimately unsuccessful.
The court applied the R v Henry guideline, which sets a starting point of four to five years full-time imprisonment for armed robbery offences. His Honour found that several Henry factors were present: the offences were committed in company, on a public street, and involved threats of a firearm. Against this, the early guilty plea attracted significant discount, and some weight was given to the offender's expressed remorse, his drug dependency at the time of the offences, and his rehabilitation efforts in custody, though his prospects of rehabilitation were assessed as only guarded given his extensive prior record.
The commission of the offences while on bail was treated as an aggravating circumstance, consistent with the principles in Veen v The Queen (No 2). The court acknowledged the tension between the protective purposes of punishment and the principle that sentences should not exceed what is proportionate to the instant offences. His Honour determined that partial accumulation of the sentences was appropriate, reflecting the fact that the offences, though similar, were committed on different occasions against different victims.
Special circumstances were found to justify varying the standard non-parole to balance-of-term ratio for the assault with intent to rob count, given the accumulated structure of the overall sentence and the importance of supervision on release for a person with the offender's background.
Orders Made
- For each of the two counts of demand property with menaces (s 99, Crimes Act 1900): sentences of three years and nine months, comprising a non-parole period of two years and six months commencing 1 November 2010, expiring 30 April 2013, with a balance of term of fifteen months expiring 31 July 2014.
- For the count of assault with intent to rob in company (s 97(1), Crimes Act 1900): a non-parole period of two years and two months commencing 1 November 2011, expiring 31 December 2013, with a balance of term of one year and ten months expiring 31 October 2015.
- All sentences backdated to 1 October 2010 (with an allowance of twelve days for prior custody).
- Overall sentence: five years and one month, with an overall non-parole period of three years and three months, expiring 31 December 2013.
Key Takeaways
- The District Court applied the R v Henry guideline starting point of four to five years for armed robbery-type offences, adjusting downward from that range for offences assessed as slightly below the midpoint of objective seriousness.
- Committing offences while on bail for similar offending constitutes a significant aggravating factor and was treated as such by the sentencing court, consistent with established authority.
- An early guilty plea attracted a meaningful discount, but its mitigating effect was tempered by the offender's extensive prior record, which itself informed a guarded assessment of rehabilitation prospects.
- Where multiple offences are committed on different occasions against different victims, partial accumulation of sentences is appropriate rather than full concurrency, to reflect the distinct criminality of each event.
- Special circumstances justifying an adjusted non-parole to balance ratio may arise from the structural effect of sentence accumulation, particularly where post-release supervision is considered important to the offender's rehabilitation.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 97(1) (assault with intent to rob in company, maximum 20 years)
- Crimes Act 1900 (NSW), s 99 (demand property with menaces, maximum 10 years)
Cases:
- R v Henry (1999) 46 NSWLR 346 (Court of Criminal Appeal guideline judgment on armed robbery sentencing)
- Veen v The Queen (No 2) (1988) 164 CLR 465 (High Court authority on proportionality and community protection in sentencing)