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District Court 17 November 2014

R v Langi

[2014] NSWDC 339

Theft & property
CRIMINAL LAW PARTICULAR OFFENCES PROPERTY OFFENCES ROBBERY IN COMPANY SENTENCE RELEVANT FACTORS

Citation: R v Langi [2014] NSWDC 339
Court: District Court of New South Wales
Date: 17 November 2014
Judge: Cogswell SC DCJ

Background

The offender, a 37-year-old man with an extensive criminal record, was sentenced for robbery in company contrary to s 97(1) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 20 years imprisonment. The offence arose from an incident at a shopping centre in Mayfield on 19 November 2013.

The offender and his partner approached a woman seated at a bus stop after the partner had mistakenly believed the woman was directing abuse at her. The partner ripped jewellery from the victim's ears and neck and took the victim's purse. The offender held the victim down and took two mobile phones from her. Stolen property was estimated to be worth approximately $5,200 in total.

The offender had been on a good behaviour bond at the time of the offence. His partner had already been sentenced by another judge, and parity between the two sentences was a central issue before the court.

  • What head sentence and non-parole period were appropriate, having regard to the R v Henry sentencing guidelines for robbery in company?
  • Whether parity principles required the offender's sentence to align closely with that imposed on his co-offender, given their respective roles and differing guilty plea timing.
  • Whether special circumstances existed to justify reducing the non-parole period below the standard 75 per cent of the head sentence.
  • What action, if any, should be taken in respect of multiple good behaviour bond breaches arising from the commission of this offence.

Decision

The court accepted that there was little material difference between the offender and his co-offender for sentencing purposes, despite the offender having played a somewhat less significant role in the robbery. That advantage was offset by the late timing of his guilty plea, which came only days before trial, and by his greater age. The co-offender had received a sentence of three years and ten months with a non-parole period of two years and ten months, and the court treated that as the appropriate baseline.

On the question of special circumstances, the court was satisfied that the standard 75 per cent non-parole ratio should be reduced to approximately 60 per cent. Two factors supported this conclusion: the offender had spent much of his adult life in custody and had therefore had limited opportunity to demonstrate stable functioning in the community; and he had shown genuine signs of rehabilitation during the current period of custody, including regular employment, significant weight gain attributable to a healthier lifestyle, no institutional disciplinary matters, and abstinence from drugs.

The court considered four good behaviour bond breaches arising from the same conduct. Three bonds, imposed in January 2012 for common assault and two apprehended violence order contraventions, were due to expire in January 2014. Because the offending occurred near the very end of those bond periods, the court declined to take action in respect of them. The fourth bond attracted an additional one-month sentence, producing an aggregate head sentence of three years and eleven months.

The court also dismissed a related charge of affray on the application of the Crown.

Orders Made

  • Aggregate head sentence of three years and eleven months, commencing 3 December 2013 and expiring 2 November 2017.
  • Non-parole period of two years and four months, commencing 3 December 2013 and expiring 2 April 2016.
  • Balance of term: one year and seven months, from 3 April 2016 to 2 November 2017.
  • Release on parole to be determined by the Parole Authority (no court-ordered release, as the overall sentence exceeded three years).
  • Charge of affray dismissed.

Key Takeaways

  • Parity in sentencing co-offenders requires a close examination of both culpability and procedural history. A less significant role in the offence does not automatically yield a lighter sentence where one offender entered a significantly later guilty plea.
  • The standard non-parole period of 75 per cent of the head sentence can be reduced where the sentencing court finds special circumstances. A history of frequent incarceration, limiting time in the community, and genuine in-custody rehabilitation can together support such a finding.
  • Under the Crimes (Sentencing Procedure) Act 1999 (NSW), courts retain discretion as to whether to take action on good behaviour bond breaches. Where the offending constituting the breach occurred near the very end of a bond period, a court may decline to impose any additional penalty for those breaches.
  • An offender committing an offence while subject to a good behaviour bond faces that fact as a statutory aggravating circumstance, regardless of what action is ultimately taken on the bond itself.
  • Evidence of rehabilitation in custody, including employment, improved health, abstinence from drugs, and a clean disciplinary record, is capable of carrying real weight in the sentencing exercise, particularly where it speaks to the need for extended supervised reintegration into the community.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(1) (robbery in company)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 98(1)(a), 98(2)(a), 98(2)(c)

Cases
- R v Henry (1999) 46 NSWLR 346 (sentencing guidelines for robbery offences)