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District Court 29 January 2016

R v Ridden

[2016] NSWDC 2

Assault & violenceTheft & propertyFirearms & weaponsPublic order & justice offences
SENTENCING PURPOSES OF SENTENCING ARMED ROBBERY ASSAULT POLICE FIREARM POSSESSION MULTIPLE OFFENCES, TOTALITY PRINCIPLE

Citation: R v Ridden [2016] NSWDC 2
Court: District Court of New South Wales
Date: 29 January 2016
Judge: Haesler SC DCJ

Background

The offender, a young woman with a prior criminal history, was sentenced for a series of serious offences committed over two consecutive days in September 2013. On 23 September 2013, she participated with three co-offenders in a carjacking targeting an 87-year-old man, two armed robberies at commercial premises in Roseville and Revesby, and the destruction of the stolen vehicle by fire. The robberies involved an axe and a sawn-off shotgun, with threats to kill made against staff and patrons.

The following evening, police attending a disturbance at a fast food restaurant encountered the offender and a co-offender. During the arrest, the offender physically attacked five officers, causing actual bodily harm to four of them, including a tendon injury to one officer that required hospitalisation and a brace for several weeks. A search of the offender's bag revealed the sawn-off shotgun used in the previous day's robberies, along with three shotgun shells.

The offender had been released from custody just months earlier after serving a mandatory period for a parole breach, and the court noted that period had had no rehabilitative effect. A breach of an earlier good behaviour bond arising from a 2010 burglary was also dealt with at the same time.

  • How to assess the objective seriousness of each offence, including the two armed robberies, multiple police assaults, firearm possession, and property destruction
  • Whether and to what extent Form 1 matters (offences taken into account but not separately sentenced) should increase the penalty for the principal offences
  • How to apply the totality principle to arrive at an appropriate aggregate sentence across numerous offences committed on two separate occasions
  • Whether special circumstances existed to justify a longer parole period relative to the non-parole period
  • How parity principles applied given co-offenders had already been sentenced
  • The relevance of general and personal deterrence for a young offender with a prior record and continued offending after previous imprisonment

Decision

Haesler SC DCJ assessed the two armed robberies as objectively serious. The use of a sawn-off shotgun and axe, threats to kill, the targeting of multiple victims including elderly people, and the coordinated if haphazard nature of the planning all elevated their seriousness. The offender's role included acting as a lookout, demanding wallets from patrons, and assisting in taking property from behind the bar. Her presence and capacity to assist was treated as active participation.

The court found the assaults on police were not trivial. They caused genuine physical harm, with bruising, swelling, and one tendon injury requiring medical treatment. The offender's continued aggression at the police station after arrest, while still drug affected, was treated as an aggravating factor.

On the question of special circumstances (which allow a court to adjust the ratio of non-parole period to overall sentence), the court accepted that the offender's drug dependency, the need for structured supervision on release, and the length of the overall sentence justified a finding of special circumstances, extending the parole period beyond the statutory default.

Applying the totality principle, the court considered the individual sentences for each offence before arriving at an aggregate sentence that reflected the overall criminality without being crushingly disproportionate. The court also ensured the breach of bond sentence ran concurrently to avoid double counting, given the breach had already been treated as an aggravating matter.

Orders Made

  • Count 1 (armed robbery, Roseville, with Form 1): 7 years 2 months imprisonment
  • Count 2 (armed robbery, Revesby): 6 years 3 months imprisonment
  • Count 3 (destroy property by fire, with Form 1): 2 years 8 months imprisonment
  • Charge 1 (possess unauthorised prohibited firearm): 3 years 4 months, NPP 2 years 2 months
  • Charge 2 (assault police, Rial, actual bodily harm): 9 months, NPP 5 months
  • Charge 3 (assault police, Murray-Swan): 4 months
  • Charge 4 (assault police, Ott, actual bodily harm): 1 year, NPP 7 months
  • Charge 5 (assault police, Markovich, actual bodily harm): 1 year, NPP 7 months
  • Charge 6 (assault police, Warner, actual bodily harm): 1 year, NPP 7 months
  • Charge 7 (assault police, Lawler, actual bodily harm): 1 year, NPP 7 months
  • Aggregate head sentence: 9 years 6 months imprisonment
  • Non-parole period: 5 years 8 months
  • Parole period: 3 years 10 months
  • All sentences backdated to 24 September 2013 (date of arrest and remand)
  • Parole eligibility date: 23 May 2019; sentence expiry: 23 March 2023

Key Takeaways

  • Form 1 matters (offences taken into account at sentencing without separate penalties) can produce a substantial increase to the sentence for the principal offence, particularly where personal deterrence and retribution for the uncharged conduct are significant considerations, as confirmed by reference to Attorney General's Application No. 1 (2002) 56 NSWLR 146.
  • A finding of special circumstances under the Crimes (Sentencing Procedure) Act 1999 (NSW) justified extending the parole period beyond the statutory default ratio, reflecting the offender's drug dependency and need for supervised reintegration after a lengthy custodial term.
  • Where a breach of bond is dealt with at the same sentencing hearing as the offending that constitutes the breach, and the breach has already been taken into account as an aggravating factor, ordering the bond penalty to run concurrently avoids impermissible double counting.
  • The totality principle required the court to step back from the aggregate of individual sentences and impose an overall term that was proportionate to the totality of the offending, rather than simply accumulating each sentence.
  • Prior imprisonment that produced no rehabilitative effect, combined with immediate reoffending upon release, was treated as relevant to both personal deterrence and the assessment of prospects of rehabilitation, even for a relatively young offender.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): ss 60(1), 60(2), 97(2), 192J, 195(1A)(b)
- Criminal Procedure Act 1986 (NSW): s 166
- Crimes (Administration of Sentences) Act 1999 (NSW): ss 3, 10A, 137
- Crimes (Sentencing Procedure) Act 1999 (NSW): s 29(3)
- Evidence Act 1995 (NSW)
- Firearms Act 1996 (NSW): ss 7(1), 65(3)

Cases
- Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
- Attorney General's Application No. 1 (2002) 56 NSWLR 146
- Barbaro v The Queen (2014) 253 CLR 58
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- CM v R [2013] NSWCCA 341
- Director of Public Prosecutions (NSW) v Tony Mawad [2015] NSWCCA 227
- Do v R [2010] NSWCCA 182
- Gill v The Queen [2010] NSWCCA 236
- Grube v R [2005] NSWCCA 140
- Hili v The Queen (2010) 242 CLR 520
- Johnson v R [2010] NSWCCA 124
- Knight v R [2005] NSWCCA 253
- Legge v R [2007] NSWCCA 244
- Lowe v The Queen (1984) 154 CLR 606
- M A K & M S K v R [2006]