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District Court 1 June 2018

R v Joshua Aniello

[2018] NSWDC 264

Assault & violenceTheft & propertyTraffic & drivingFirearms & weapons
CRIMINAL LAW SENTENCING ARMED ROBBERY USE OF WEAPON EXTRAORDINARY SCENES ON PICTON ROAD PREGNANT WOMEN THREATENED EARLY PLEA

Citation: R v Joshua Aniello [2018] NSWDC 264
Court: District Court of New South Wales
Date: 1 June 2018
Judge: Haesler SC DCJ

Background

In June 2016, a road rage incident on Picton Road, south-west of Sydney, escalated into armed robbery. After erratic driving caused another motorist to brake sharply, the offender stopped his vehicle to block the road. When the other driver confronted him and mentioned she had photographed his number plate, the offender retrieved what appeared to be a handgun, pointed it at her face, and demanded her phone. The victim was six months pregnant.

The offender then turned the weapon on her passenger, demanded his phone and car keys, and ultimately drove away with the victim's phone and the car keys. The victim vomited at the roadside from distress. Police arrested the offender the following day after he gave a fabricated account of his vehicle having been stolen.

The offender pleaded guilty in the Local Court to two offences of robbery and attempted robbery while armed with a dangerous weapon, and one traffic offence of driving in a dangerous manner. The District Court was tasked with imposing sentence across all three matters.

  • What was the appropriate sentence for two counts of armed robbery (or attempted armed robbery) under s 97(2) of the Crimes Act 1900, and one count of dangerous driving under the Road Transport Act 2013?
  • What weight should be given to the offender's psychiatric history (including possible bipolar disorder, borderline personality traits, ADHD, and a subsequent serious head injury sustained in custody) in the subjective case for sentencing?
  • Whether special circumstances existed to justify extending the parole period beyond the statutory proportion, and the proper role of the State Parole Authority in determining actual release on parole.
  • What discount should apply for the early plea of guilty?

Decision

Haesler SC DCJ characterised the offending as objectively very serious. The judge noted that even accepting the offender's own claim that the weapon may not have been real, the victims had no way of knowing that, and the threat was entirely credible given the erratic conduct preceding it. The fact that the victims were engaged in the civic act of recording dangerous driving was treated as an aggravating feature.

Two forensic psychiatrists, Dr Gordon Elliott and Dr Olav Nielssen, provided reports on the offender's psychiatric history. Dr Elliott identified borderline personality traits and a pattern of impulsive and oppositional behaviour, while Dr Nielssen considered a diagnosis of bipolar mood disorder appropriate and postulated the offender may have been in a hypomanic phase at the time. Both experts also noted the likely disinhibiting effect of benzodiazepine medication. The judge took these factors into account in the subjective case, alongside the offender's difficult history, early guilty plea, and significant in-custody challenges including a serious head injury.

The court found special circumstances existed, warranting a non-parole period shorter than the standard statutory ratio, in order to allow for adequate supervision and support during the offender's reintegration. The judge applied a 25% discount for the utilitarian value of the early guilty plea. The judgment also contained a direct observation to the offender that the State Parole Authority, not the sentencing court, determines whether parole is actually granted, and that the offender's poor behaviour in custody could affect his prospects of release on the date indicated.

Orders Made

  • Conviction recorded on all three offences.
  • 25% discount applied to reflect the early guilty plea.
  • Armed robbery (s 97(2) Crimes Act 1900): 3 years and 9 months imprisonment.
  • Attempted armed robbery (s 97(2) Crimes Act 1900): 3 years imprisonment.
  • Dangerous driving (s 117(2) Road Transport Act 2013): 3 months imprisonment.
  • Total aggregate sentence: 4 years and 1 month.
  • Non-parole period (reflecting special circumstances): 2 years and 6 months.
  • Sentence commenced 6 June 2016; parole eligibility date 6 December 2018; sentence expiry 5 July 2020.
  • Driving disqualification: 1 year (minimum period), stayed until date of release.

Key Takeaways

  • Armed robbery involving a firearm pointed at a pregnant victim on a public road, followed by a threat to a second victim, was assessed as objectively very serious even where the quantity of property taken was small. The court emphasised that such offences are not merely property crimes but gross violations of the victims' rights and personal integrity.

  • A diagnosis of bipolar disorder or borderline personality traits does not automatically reduce moral culpability, but can be weighed as part of the subjective case where expert psychiatric evidence supports a link between the condition and the offending conduct.

  • Special circumstances within the meaning of the sentencing framework can be established where a combination of psychiatric vulnerability, in-custody head injury, and the need for extended post-release supervision makes a longer parole period appropriate.

  • A 25% discount for the utilitarian value of an early guilty plea, consistent with the principles in Mill v The Queen (1988) 166 CLR 59 and R v Israil [2002] NSWCCA 255, was applied to reduce the otherwise appropriate sentence.

  • The District Court made clear that fixing a parole eligibility date does not guarantee release on that date. The State Parole Authority retains independent responsibility for assessing community safety before granting parole, and in-custody behaviour is a central consideration in that assessment.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(2)
- Criminal Procedure Act 1987 (NSW), s 166
- Road Transport Act 2013 (NSW), s 117(2)

Cases:
- DPP (Cth) v De Le Rosa [2010] NSWCCA 194
- Engert (1995) 84 A Crim R 67
- Henry v The Queen (1999) 46 NSWLR 346
- Mill v The Queen (1988) 166 CLR 59
- O'Connor [2013] NSWDC 272; O'Connor [2014] NSWCCA 53
- Polycarpou v Australian Wire Industries NSW [1995] 36 NSWLR 49
- R v Israil [2002] NSWCCA 255
- Silvano v R [2008] NSWCCA 118