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District Court 14 December 2012

R v Alexandrou

[2012] NSWDC 312

Assault & violenceDrugsTheft & property
CRIMINAL

Citation: R v Alexandrou [2012] NSWDC 312
Court: District Court of New South Wales
Date: 14 December 2012
Judge: S Norrish QC

Background

The offender pleaded guilty in the Local Court to attempting to commit robbery whilst armed with an offensive weapon, contrary to s 97(1) of the Crimes Act 1900. The offence occurred on 3 January 2012 at a newsagency in Wiley Park, where the offender approached a staff member, produced a kitchen knife, and demanded money. The victim alerted her husband and struck the offender's knife hand with scissors, prompting him to flee without obtaining anything.

The offender was arrested approximately five and a half hours later in a drug-affected state. He was on parole at the time of the offence, having been released on parole on 25 July 2011 in connection with prior sentences that included armed robbery. His parole was revoked from the date of his arrest, leaving a balance of sentence of approximately two years and six months still to be served.

The matter came before the District Court for sentencing. The offender had a significant history of drug dependency, which featured prominently in his background and in submissions concerning his prospects of rehabilitation.

  • What was the appropriate starting point for the sentence, and what discount applied for the early guilty plea?
  • How did the offender's parole status and revoked parole affect the structure of the new sentence?
  • Whether the use of the knife constituted a separate aggravating factor under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999, given it was already the basis of the charge.
  • Whether the offender's drug dependency and possible drug-induced psychosis at the time of the offence were relevant mitigating factors.
  • Whether special circumstances existed to justify a departure from the standard ratio of non-parole period to total sentence.

Decision

His Honour fixed a starting sentence of six years imprisonment, then applied a 25 per cent discount for the utilitarian value of the early guilty plea, reducing the total sentence to four years and six months. The court noted the maximum penalty for the offence is 20 years imprisonment and that there is no standard non-parole period.

On the question of aggravation, the court found no basis to treat the knife as a further aggravating circumstance under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999. Because the use of an offensive weapon was the very element that elevated the charge, treating it again as a discrete aggravating factor would amount to double-counting.

The court acknowledged the offender's long-standing and severe drug dependency as a significant factor in his offending history, while also noting it could not determine whether a drug-induced psychosis actually operated at the time of the robbery. Drug dependency was treated as relevant to rehabilitation prospects and to the need for a longer parole period, rather than as a basis for substantially reducing the objective seriousness of the offence.

Special circumstances were found to exist, justifying a non-parole period shorter than the standard statutory proportion. The extended balance of sentence was intended to provide a longer supervised period on parole to assist with the offender's rehabilitation from drug dependency. The new sentence was structured to commence on 3 April 2013, one year and three months into the balance of the revoked parole, with the totality principle applied to ensure the combined effect of the parole balance and new sentence was not crushing.

Orders Made

  • The offender was convicted of attempting to commit robbery whilst armed with an offensive weapon, contrary to s 97(1) of the Crimes Act 1900.
  • Sentenced to imprisonment with a non-parole period of two years and five months, commencing 3 April 2013 and expiring 2 September 2015.
  • Balance of sentence fixed at two years and one month, expiring 2 October 2017.
  • Earliest release date: 2 September 2015, subject to the Parole Authority's determination.
  • No parole conditions fixed by the court; conditions left to the Parole Authority.

Key Takeaways

  • The District Court applied a 25 per cent plea discount reflecting the utilitarian value of an early guilty plea entered at the Local Court, consistent with the approach in R v Henry (1999) 46 NSWLR 346.
  • Where a weapon is the element that constitutes an aggravated form of an offence, using that same weapon as a further aggravating factor under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 is impermissible double-counting.
  • A finding of special circumstances can support a non-parole period below the standard statutory proportion, particularly where an extended parole period is considered necessary to address entrenched drug dependency and reduce the risk of reoffending.
  • The totality principle required the court to account for the remaining parole balance when structuring the new sentence, so that the combined effect was proportionate to the overall criminality.
  • Drug dependency was treated as bearing on rehabilitation prospects and parole supervision requirements, but uncertainty about whether drug-induced psychosis actually operated at the time of the offence meant it could not be taken as significantly reducing moral culpability for the robbery.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)

Cases:
- Veen (No 2) v The Queen (1988) 164 CLR 465
- R v Henry (1999) 46 NSWLR 346
- R v Hemsley [2004] NSWCCA 228
- Callaghan v R [2006] NSWCCA 58
- DW v R [2012] NSWCCA 66