Citation: R v Venios [2012] NSWDC 270
Court: District Court of New South Wales
Date: 19 October 2012
Judge: Berman SC DCJ
Background
The offender was one of two men who robbed a woman (referred to here as the victim) after she won a jackpot on poker machines at a local hotel. Having watched her collect her cash winnings and celebrate with other patrons, the offender and his associate followed the victim and waited until she was alone before forcing their way into her home. One man held the victim down and took the money from her pockets while the other stood guard.
The victim was particularly vulnerable. She had poor eyesight requiring thick prescription glasses and was believed to be intoxicated at the time of the attack. The offender was aware of her vulnerability even if he may not have known the full extent of her vision impairment. The harm to the victim was significant, compounded by her having previously been the victim of a more serious offence.
The offender's co-accused, Mr Hickey, had already been sentenced earlier in the year to six years' imprisonment with a three-year non-parole period. At the time Mr Hickey was sentenced, the offender's matter was still in the Local Court and he had not yet entered a plea.
Legal Issues
- What was the appropriate sentence for the offender's role in the joint criminal enterprise robbery?
- What weight should be given to the offender's drug addiction, claimed remorse, and partial completion of a residential rehabilitation program?
- Whether the offender's prospects of rehabilitation warranted a deferral of sentence under s 11 of the Crimes (Sentencing Procedure) Act.
Decision
Berman SC DCJ observed at the outset that each co-offender had blamed the other for his involvement, an outcome the judge had explicitly predicted when sentencing Mr Hickey. The judge acknowledged the unsatisfactory result of sentencing co-offenders at different times: each man was being sentenced on the basis that the other bore greater responsibility. This problem arose because the offender's matter had not been resolved in time to be dealt with alongside his co-accused.
The judge found that the offender's role, although not involving the physical act of taking the money, was integral to the joint criminal enterprise. Standing guard while his associate robbed the victim was a deliberate and planned contribution. The offender's drug use at the time was noted but did not significantly diminish his culpability, as he retained sufficient capacity to plan and execute the offence.
As to rehabilitation, the judge was not satisfied that the offender had demonstrated genuine progress. The offender had been discharged from a residential rehabilitation program after drinking in breach of its rules, breaking his arm in a fall, and forming a prohibited relationship with another participant. His initial denials to police and the timing of his expressed remorse also weighed against him. The judge concluded that, had sentence been imposed that day, a full-time custodial term would almost certainly have followed.
Nevertheless, the judge considered that the offender's youth, absence of prior criminal history, and some remaining potential for rehabilitation justified deferring sentence under s 11 of the Crimes (Sentencing Procedure) Act until 31 May 2013. The primary sentencing purpose identified was the protection of the community, and the judge reasoned that rehabilitation, if genuinely achieved, could serve that purpose at least as effectively as immediate imprisonment.
Orders Made
- Sentencing adjourned to 31 May 2013 pursuant to s 11 of the Crimes (Sentencing Procedure) Act.
- The offender was to abstain from all drug use and provide urinalysis results at least twice per month at his own expense.
- The offender was to be of good behaviour and make substantial efforts to obtain and retain employment.
- The offender was not to approach or be in the presence of the victim.
- A pre-sentence report was ordered for the next appearance.
- A report was requested from the Salvation Army regarding the offender's rehabilitation history and any future program participation.
Key Takeaways
- The District Court reaffirmed that co-offenders should ordinarily be sentenced at the same time, warning that separate proceedings create the risk that each offender is sentenced on the basis that the other was the principal, producing an outcome that is difficult to justify and hard to explain to victims.
- Under s 11 of the Crimes (Sentencing Procedure) Act, a court may defer sentencing to allow an offender to demonstrate rehabilitation, particularly where the offender is young and has no prior criminal history.
- Partial completion of a residential rehabilitation program carried significantly reduced weight where the program permitted regular absences and the offender breached its rules on multiple occasions.
- A finding of vulnerability does not depend on the offender having precise knowledge of the victim's disabilities; awareness that the victim was intoxicated, alone, and targeted because of her winnings was sufficient to establish that the offender knew she was vulnerable.
- Protection of the community was identified as the primary sentencing purpose, with the court treating genuine rehabilitation and custodial sentences as alternative means of achieving that goal rather than as competing considerations.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act (NSW), s 11 (adjournment for rehabilitation purposes)
Cases:
No cases were cited in the judgment text or metadata.