Citation: R v Chaker [2014] NSWDC 330
Court: District Court of New South Wales
Date: 18 December 2014
Judge: Judge S Norrish QC
Background
The offender, a 20-year-old man with an intellectual disability, committed two related street robberies in the early hours of 7 August 2013 in the East Sydney area, while on parole for a prior armed robbery. He acted together with a co-accused who was nearly 20 years his senior.
In the first offence, the offender and his co-accused followed a woman walking alone along William Street at around 4 am, demanded money and ultimately took her Westpac bankcard and PIN, attempting (unsuccessfully) to withdraw funds. In the second offence, committed within half an hour, the offender approached a man and his companion in the same vicinity. On this occasion the offender concealed a metal spike beneath his sleeve, used it to intimidate the male victim, demanded and took a Commonwealth bankcard, and ultimately withdrew $100 in cash from an ATM after threatening to stab the victim when the first PIN provided appeared not to work.
Both offenders were identified from CCTV footage and arrested the same day, still wearing the same clothing. The offender's parole was subsequently revoked, backdated to the date he entered custody.
Legal Issues
- What sentence was appropriate for the offences of demanding property with menaces in company and armed robbery, taking into account the objective seriousness of each offence?
- To what extent did the offender's intellectual disability and personal circumstances mitigate his culpability?
- How should the sentences relate to each other and to the unexpired parole period already being served?
- Whether special circumstances existed to justify a longer than usual balance of sentence (the non-parole period as a proportion of the total sentence).
Decision
Judge Norrish found that the offender played the leading role in both offences. It was the offender, not the co-accused, who made demands, handled the bank cards, attended ATMs, and, in the second offence, was armed and made oral threats. While the judge accepted that the offender's intellectual disability may have made him susceptible to suggestion, the objective facts showed him as the primary actor throughout.
The judge acknowledged several mitigating factors. These included the offender's intellectual disability, his relative youth (20 at the time of offending), expressions of remorse that were assessed as genuine, and the existence of some difficult personal history. However, these factors were weighed against a prior armed robbery conviction recorded when the offender was only 18, a pattern of offending, and the fact that both offences were committed while the offender was on parole.
On the question of special circumstances under the Crimes (Sentencing Procedure) Act 1999, the judge found such circumstances existed, primarily because of the offender's intellectual disability and the need for an extended period of supervised parole to assist with rehabilitation and reintegration. This resulted in a longer than standard balance of sentence relative to the non-parole period.
The sentences were structured to run partially cumulatively upon each other and upon the period of revoked parole, reflecting the principle that separate offences require some degree of accumulation while avoiding a crushing total sentence.
Orders Made
- Demand property with menaces in company: convicted and sentenced to imprisonment with a non-parole period of 12 months commencing 8 February 2014 and expiring 7 February 2015; balance of sentence of 18 months expiring 7 August 2016.
- Armed robbery: convicted and sentenced to imprisonment with a non-parole period of 18 months commencing 8 August 2014 and expiring 7 February 2016; balance of sentence of 30 months expiring 7 August 2018.
- Total effective sentence: 4 years 6 months imprisonment, with a non-parole period of 2 years.
- Earliest eligibility for release to parole: 7 February 2016.
Key Takeaways
- An offender's intellectual disability is a recognised mitigating factor in sentencing that may ground a finding of special circumstances, warranting a shorter non-parole period relative to the total sentence to allow for extended supervised parole.
- Where an offender with a prior armed robbery conviction commits further armed robberies while on parole, the breach of conditional liberty is a significant aggravating factor that the sentencing court must weigh against available mitigation.
- The District Court confirmed that a co-offender's greater age, mental illness, and criminal history do not automatically reduce a younger co-offender's culpability where the objective facts show the younger offender took the more active and dominant role.
- Partial accumulation of sentences is appropriate where offences are related in time but nonetheless constitute distinct criminal acts against separate victims.
- Genuine remorse, assessed on all available material including letters from family and the offender's own conduct, remains a relevant mitigating factor even where an offender has a prior record, though its weight depends on the circumstances of the case.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 97(1) (armed robbery, maximum 20 years) and 99(2) (demanding property with menaces in company, maximum 14 years)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases
- R v Muldrock [2011] HCA 39
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- R v Henry (1999) 46 NSWLR 346
- R v Thomson and Houlton [2000] NSWCCA 309
- R v Callaghan [2006] NSWCCA 58
- R v DW [2012] NSWCCA 66
- R v Hemsley [2004] NSWCCA 228
- R v Lattouf, NSWCCA (unreported, 12 December 1996)