Citation: R v John Michael Camilleri [2014] NSWDC 235
Court: District Court of New South Wales
Date: 12 December 2014
Judge: Mahony SC DCJ
Background
The offender was tried jointly with a co-accused on charges arising from an incident on 21 June 2013 at Prospect, NSW. The victim had an informal arrangement to drive the offender, who had lost his licence. On the evening in question, the offender lured the victim to a location in Myrtle Street under the pretence of visiting a nearby address.
When the victim waited in his car, the offender approached the driver's window and demanded the vehicle. The co-accused then emerged and subjected the victim to a violent assault using fists, headbutts, kicks and knees. After the assault, the offender demanded the victim's wallet at the scene. The offender then drove away in the victim's Holden Commodore, with the co-accused in the passenger seat.
A jury found the offender guilty on two counts: taking and driving a motor vehicle with assault in company (s 154C(2), Crimes Act 1900), and robbery with corporal violence (s 95(1), Crimes Act 1900). The stolen debit card was subsequently used at several stores, giving rise to additional related offences dealt with by way of a s 166 Certificate under the Criminal Procedure Act 1986.
Legal Issues
- The appropriate sentences for the primary offences of carjacking in company and robbery with corporal violence, having regard to the offender's role in a joint criminal enterprise
- Whether the victim's relationship with the offender elevated his vulnerability as an aggravating factor
- The relevance of the offender being on bail at the time of the offences, where the underlying charges were later withdrawn
- The weight to be given to the psychological report, including portions disavowed by defence counsel as inconsistent with the jury's verdicts
- How to structure concurrent and cumulative sentences across multiple counts to achieve proportionality and avoid double punishment (the totality principle)
Decision
Mahony SC DCJ found that both the offender and the co-accused acted as part of a joint criminal enterprise, making each responsible for the other's conduct during the offending. The court distinguished their respective roles: the co-accused was the primary physical aggressor, while the offender was responsible for the plan, the demand, and the taking of the wallet. Notwithstanding the different physical roles, both were equally culpable in law.
On the question of the victim's vulnerability, the court accepted the Crown's submission that the victim's position as the offender's paid driver placed him at a disadvantage, but stopped short of treating this as an aggravating factor under the formal statutory definition of "vulnerable person." The court also addressed the bail aggravation argument cautiously: the offender had been on bail at the time, but the underlying charges were ultimately withdrawn, and the court gave this limited weight.
The psychological report from the forensic psychologist was partially accepted. Defence counsel expressly disavowed the paragraphs setting out the offender's self-serving account of the offending, which the court noted was inconsistent with the jury's verdicts. The court accepted the broader findings, including that drug dependence was a major contributing factor to the offending, that the offender had average intellectual capacity, and that his risk of reoffending was assessed as low.
In structuring the sentence, the court applied the totality principle to avoid disproportionate cumulation across the two primary counts and the related certificate offences. The court took into account the offender's time already served in pre-sentence custody, his lack of prior convictions for violence, and his motivation to return to his partner and young daughter.
Orders Made
Count 1 (Carjacking in company, s 154C(2)):
- Convicted and sentenced to a non-parole period of 18 months, commencing 24 November 2013 and expiring 23 May 2015
- Additional term of 12 months, expiring 23 May 2016
- Total sentence: 2 years and 6 months
Count 3 (Robbery with corporal violence, s 95(1)):
- Convicted and sentenced to a fixed term of 12 months, commencing 24 July 2014 and terminating 23 July 2015
- Served partially concurrently with Count 1
Parole eligibility date: 23 July 2015
Section 166 Certificate matters:
- Sequence 4 (dishonestly obtaining financial advantage, McDonalds): guilty; fixed term of 3 months, 12 December 2014 to 11 March 2015, served concurrently
- Sequence 5 (dishonestly obtaining financial advantage, Woolworths): not guilty
- Sequence 6 (dishonestly obtaining financial advantage, 7-Eleven): guilty; fixed term of 3 months, 12 December 2014 to 11 March 2015, served concurrently
Key Takeaways
- In a joint criminal enterprise, each participant bears legal responsibility for the acts of the other, even where their physical roles differ materially during the offending.
- A victim's pre-existing relationship with an offender that places the victim at a practical disadvantage may be noted as a contextual factor without necessarily constituting a formal statutory aggravating circumstance of "vulnerability."
- Where bail charges underlying an aggravation argument are later withdrawn, the District Court here gave that bail circumstance limited weight in sentencing, rather than treating it as a straightforward aggravating factor.
- Portions of a psychological report that contradict the jury's verdicts may be disavowed by defence counsel and set aside by the court without affecting reliance on the remainder of the report.
- The totality principle required the court to structure partially concurrent sentences across multiple counts so that the aggregate term reflected the overall criminality without resulting in a disproportionately crushing sentence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 95(1), 154C(2)
- Criminal Procedure Act 1986 (NSW), s 166
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 5
Cases:
- Cahadi v The Queen (2007) 168 A Crim R 41
- KR v R [2012] NSWCCA 332
- Manly v R [2014] NSWCCA 59
- Pearce v The Queen (1998) 194 CLR 610
- R v Barker; R v Gibson [2006] NSWCCA 20
- R v Cotter [2003] NSWCCA 273
- R v Hoschke [2001] NSWCCA 317
- R v Matthews [2007] NSWCCA 294
- R v Sukkar [2011] NSWCCA 140