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District Court 28 March 2013

R v Aaron Clark

[2013] NSWDC 34

Assault & violenceTheft & property

Citation: R v Aaron Clark [2013] NSWDC 34
Court: NSW District Court
Date: 28 March 2013
Judge: Judge Haesler SC

Background

The offender, a 19-year-old male, was arrested in September 2011 after a series of serious crimes committed over a roughly six-month period earlier that year. He had been in continuous custody from the date of arrest. His background included family disruption, early drug use, and prior lenient treatment by the courts that had not altered his conduct.

The offences spanned four separate matters: acting as accessory after the fact to a robbery in February 2011; acting as accessory before the fact to a knife-point robbery in June 2011; a drug supply charge and related larceny matters (dealt with on a Form 1); and a conviction after trial for robbery in company arising from a stabbing and robbery in July 2011. The trial matter was the most serious, involving the offender orchestrating a robbery of a man he had driven to an isolated suburban location under the guise of a drug purchase.

Co-offenders for several of the matters had already been sentenced by other judges. The court was required to impose an aggregate sentence that addressed all four matters while accounting for totality, the offender's youth, his rehabilitation in custody, and the objective seriousness of each offence.

  • What individual sentences were appropriate for each of the four matters, having regard to objective seriousness, the offender's role, and any mitigating factors?
  • How should the aggregate sentence be constructed under the Crimes (Sentencing Procedures) Act 1999 to reflect totality without double-counting?
  • Whether parity with co-offenders sentenced by other judges was relevant or achievable across the different matters.
  • What facts could be taken into account following a jury verdict, and in particular whether the use of a knife (unknown to the offender at the time) could be treated as an aggravating circumstance.
  • Whether special circumstances existed to justify varying the standard ratio of non-parole period to head sentence.

Decision

Robbery in company (trial conviction). The court made detailed factual findings consistent with the jury's verdict. It found beyond reasonable doubt that the offender deliberately recruited associates to assist him rob the victim, and used his car's central locking system to unlock the vehicle doors to enable the attack. The court found that the recruited men were armed with knives unknown to the offender, consistent with the Crown's concession on that point. Applying The Queen v De Simoni (1981) 147 CLR 383, the court expressly declined to treat the knife wound as an aggravating feature in sentencing for the robbery, since the offender had not foreseen the use of a weapon.

Accessory matters. The accessory after the fact charge (the February 2011 robbery) was treated as objectively less serious, given the Crown's concession that the evidence went only to the offender's post-robbery conduct in warning an associate by SMS. The court noted that no parity issue arose with co-offenders Osbourne and Jones, who had actually participated in the robbery and had extensive prior records. For the accessory before the fact matter (the June 2011 knife robbery), the court drew a comparison with its earlier sentence of the principal offender, Nathan Delforce, and treated the Form 1 matters (vehicle thefts and one drug supply event) as additional aggravation within that sentencing exercise.

Drug supply. A separate charge arose from recorded arrangements for the sale of MDMA tablets in August 2011. The court treated this as a stand-alone matter reflecting a pattern of drug dealing rather than an isolated transaction.

Aggregate sentence and special circumstances. Applying Power v The Queen (1974) 131 CLR 623, the court treated the aggregate non-parole period as the minimum period of imprisonment warranted by the totality of the offending. The court found special circumstances, given the offender's youth, his demonstrated rehabilitation in custody, and the need for an extended supervised parole period to consolidate that progress. The aggregate head sentence was accordingly set at 5 years 6 months with a 3-year non-parole period, a ratio reflecting the special circumstances finding. A 25% discount was applied to charges where guilty pleas had been entered or indicated in the Local Court.

Orders Made

  • Convicted on all charges.
  • Charge 1 (supply prohibited drug): 1 year 10 months.
  • Charge 2 (accessory after the fact to robbery): 6 months.
  • Charge 3 (accessory before the fact to robbery, including Form 1 matters): 2 years 7 months.
  • Robbery conviction after trial: 4 years.
  • Aggregate sentence of 5 years 6 months imposed, with a non-parole period of 3 years commencing 13 September 2011 and expiring 12 September 2014.
  • Parole period to run from 13 September 2014 to 12 March 2017.
  • Compensation orders made under the Victims Support and Rehabilitation Act 1996: $12,400 payable to one victim and $40,000 payable to another, both within 28 days.
  • Leave granted to the DPP to make further compensation claim applications on 7 days' notice.

Key Takeaways

  • The District Court confirmed that, where a jury returns a guilty verdict, the sentencing judge must identify the facts consistent with that verdict to the requisite standard. Facts adverse to the offender that cannot be proved beyond reasonable doubt cannot be used to increase the sentence, following The Queen v Olbrich (1999) 199 CLR 270 and Weininger v The Queen (2003) 212 CLR 629.
  • Under The Queen v De Simoni (1981) 147 CLR 383, conduct that would constitute a more serious offence (here, wounding during a robbery) cannot be taken into account as an aggravating factor when sentencing for the lesser charge, even where that conduct occurred in the course of the same events.
  • Parity with co-offenders sentenced by different judges is not automatically available where the co-offenders had different roles, different criminal histories, or faced different charges.
  • A finding of special circumstances, grounded in an offender's youth and genuine rehabilitation in custody, can justify departing from the standard non-parole to head sentence ratio in favour of an extended parole period.
  • Where guilty pleas were entered or indicated at the Local Court stage, the court applied a 25% discount to the otherwise appropriate sentences for those matters.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedures) Act 1999 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW)
- Evidence Act 1995 (NSW), s 128
- Victims Support and Rehabilitation Act 1996 (NSW)

Cases
- DPP (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
- The Queen v De Simoni (1981) 147 CLR 383
- R v Grube [2005] NSWCCA 140
- Henry v R (1999) 46 NSWLR 346
- Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520
- Markarian v The Queen (2005) CLR 357
- R v MJR (2002) 54 NSWLR 368
- The Queen v Olbrich (1999) 199 CLR 270
- Pearce v The Queen (1998) 194 CLR 610
- Power v The Queen (1974) 131 CLR 623
- Portolesi [2012] NSWCCA 157
- Postiglione v The Queen (1997) 189 CLR 295
- Weininger v The Queen (2003) 212 CLR 629