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District Court 2 November 2012

R v Genua; R v Hardy

[2012] NSWDC 280

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW SENTENCE FORMS 1 "ONE MAN CRIME WAVE" CONSPIRACY TO COMMIT ARMED ROBBERY ATTEMPTED ROBBERY

Citation: R v Genua; R v Hardy [2012] NSWDC 280
Court: District Court of New South Wales
Date: 2 November 2012
Judge(s): Berman SC DCJ

Background

Two offenders, referred to here as Genua and Hardy, appeared for sentence in connection with a conspiracy to commit an armed robbery in November 2009. Police had intercepted telephone calls between four men, including Genua and Hardy, as they planned the robbery. All four were arrested before the offence could be carried out. When arrested, Genua drove a stolen BMW towards a police vehicle rather than surrendering, giving rise to additional charges relating to the use of a vehicle as an offensive weapon and taking and driving a stolen vehicle.

Hardy's sentencing concerned only the conspiracy charge. A jury had acquitted him of using a vehicle as an offensive weapon during his own arrest, though it convicted him of the conspiracy.

Genua's sentencing was considerably more complex. After his arrest in 2009 he was placed in residential rehabilitation, but the program broke down following the discovery of tablets in clothing brought to him. He subsequently offended prolifically across July and August 2011, committing a series of bag snatchings, robberies, vehicle thefts, and further uses of vehicles as offensive weapons against police. His victims included elderly pedestrians, a woman whose hand became trapped in his car door as he fled, and police officers who were forced to jump clear of his vehicle. The sentencing judge described him as a "one man crime wave."

  • The appropriate sentence for Hardy on the single count of conspiring to commit an armed robbery, accounting for time already served in custody.
  • The appropriate aggregate sentence for Genua across five substantive offences (conspiracy, robbery, and three steal-from-person offences), with a large number of additional offences to be taken into account on Form 1.
  • Whether an extended non-parole period should be imposed on Hardy to make him eligible for referral to the Compulsory Drug Treatment program, given the psychologist's recommendation.

Decision

Berman SC DCJ sentenced Hardy to a total term of five years with a non-parole period of three years, both dated from 12 November 2009. The judge noted that Hardy had spent an unusually long time in custody before sentence, and expressly rejected any suggestion that the non-parole period should be extended merely to qualify him for the Compulsory Drug Treatment program. Hardy was therefore eligible for parole almost immediately after sentence was handed down.

For Genua, the judge identified the sentences he would have imposed on each substantive offence individually: four and a half years for the conspiracy, three years for the robbery of one victim, two years for the steal-from-person involving another victim who was run over, two and a half years for a further steal-from-person offence, and eighteen months for taking and driving a conveyance. He then imposed an aggregate sentence rather than accumulating each term.

The aggregate sentence for Genua comprised a non-parole period of four and a half years and a parole eligibility period of three years, making a total term of seven and a half years, dated from 10 December 2010. Genua would accordingly become eligible for parole on 9 June 2015. The judge noted Genua's downward spiral following the breakdown of his rehabilitation placement and the severity and volume of his 2011 offending, which had culminated in a planned suicide that was only averted by his arrest.

Orders Made

  • Hardy sentenced to imprisonment with a non-parole period of three years and a head sentence of five years, commencing 12 November 2009; eligible for parole on 11 November 2012.
  • Genua sentenced to an aggregate term comprising a non-parole period of four and a half years and a parole eligibility period of three years (total: seven and a half years), commencing 10 December 2010; eligible for parole on 9 June 2015.

Key Takeaways

  • The District Court confirmed that it will not artificially extend a non-parole period solely to render an offender eligible for a specialist program such as the Compulsory Drug Treatment program, even where that program may assist rehabilitation.
  • An aggregate sentence is available where an offender faces multiple substantive charges; the individual terms notionally attributed to each offence inform, but do not mechanically determine, the final aggregate.
  • Form 1 procedure (taking additional offences into account without recording separate convictions) was applied extensively for Genua, covering offences including vehicle arson, drug possession, offensive weapon use against police, and multiple further thefts.
  • Where an offender is convicted of conspiracy to commit an armed robbery and separately admits to using a stolen vehicle as an offensive weapon against police at the time of arrest, both the conspiracy and the conduct at arrest are properly before the sentencing court.
  • The length of time spent in pre-sentence custody is a significant factor in calculating when a non-parole period commences and when parole eligibility arises.

Legislation and Cases Referenced

No specific legislation or cases were cited in the provided judgment text.