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District Court 26 October 2018

R v Dandan

[2018] NSWDC 323

Theft & propertyPublic order & justice offences
CRIMINAL LAW OFFENCE PLEA OF GUILTY AGGRAVATED BREAK AND ENTER LARCENY OBJECTIVE SERIOUSNESS

Citation: R v Dandan [2018] NSWDC 323
Court: District Court of New South Wales
Date: 26 October 2018
Judge: Scotting DCJ

Background

The offender pleaded guilty to one count of aggravated break and enter with intent to commit larceny, arising from his participation in a planned ram raid on an ANZ Bank ATM at the Meadowbank Village Plaza Shopping Centre in the early hours of 24 December 2015. The circumstance of aggravation was that he acted in company with three co-offenders. Two counts of taking and driving a conveyance without the owner's consent were placed on a Form 1 (meaning the court took them into account when sentencing, without recording separate convictions for them).

The offender's role was that of lookout. While co-offenders stole a Mitsubishi Pajero and a Toyota Hiace, drove them into the shopping centre facade, and rammed the ATM, the offender remained in a separate vehicle nearby. The ATM was not successfully stolen because one of its mountings remained bolted to the floor.

Police surveillance, including phone intercepts, cell tower data, and a tracking device placed on a co-offender's vehicle, placed the offender with the group during reconnaissance on the night of 22 December 2015 and again on 23 December 2015 when the offences were carried out.

  • What was the appropriate sentence, having regard to the objective seriousness of the offence and the offender's role as a lookout rather than a principal actor in the ram raid itself?
  • What weight should be given to mitigating factors, including the guilty plea, the offender's drug use at the time, employment history, and compliance with bail conditions?
  • What sentence was appropriate to maintain parity with the sentences imposed on co-offenders?
  • Whether a sentence of imprisonment should be served by full-time custody or by way of an Intensive Correction Order (ICO), which permits the sentence to be served in the community under strict supervision.

Decision

Scotting DCJ accepted that the offence was planned and deliberate, involving significant reconnaissance in the days before the raid and coordination among four co-offenders. The ram raid involved high-speed travel and considerable violence to property, and was motivated by financial gain. These factors elevated the objective seriousness of the offending.

The offender's role as lookout, however, was assessed as less culpable than that of the co-offenders who physically executed the raid. The court took into account his guilty plea, his two years of drug abstinence since the offending, his steady employment as a spray painter since 2016, his compliance with a 10-hour daily curfew since arrest in March 2016, and his low to medium assessed risk of reoffending. The court also accepted that his heavy poly-drug use at the time of the offence, including heroin, cocaine, Endone, cannabis, and Valium, had impaired his decision-making.

The court considered parity with the sentences received by co-offenders and concluded that an ICO was appropriate in the offender's particular circumstances. Scotting DCJ was satisfied, after considering all alternatives, that imprisonment was required, but found that the safety of the community was adequately addressed by a strictly conditioned ICO rather than full-time custody.

Orders Made

  • The offender was convicted of aggravated break and enter with intent to commit larceny.
  • The two Form 1 matters (take and drive conveyance without consent) were taken into account.
  • Sentenced to 2 years imprisonment, to be served by way of an Intensive Correction Order commencing 26 October 2018 and expiring 25 October 2020.
  • Required to report to Parramatta Community Corrections Office by 4pm on 2 November 2018.
  • Standard ICO conditions applied: no further offences; submission to supervision by a Community Corrections Officer.
  • Additional conditions imposed:
  • 300 hours community service work
  • Abstention from all illicit and non-prescribed drugs
  • Non-association with the three named co-offenders

Key Takeaways

  • A participant in a joint criminal enterprise who acts only as a lookout may be assessed as less culpable than those who physically carry out the offence, and this distinction can affect the form of sentence ultimately imposed.
  • Under s 7(1) of the Crimes (Sentencing Procedure) Act 1999, a court may direct that a term of imprisonment be served by way of an Intensive Correction Order where, having regard to community safety as the paramount consideration under s 66, full-time custody is not required.
  • Sustained post-offence rehabilitation, including drug abstinence, stable employment, and compliance with bail conditions over an extended period, carried meaningful mitigating weight in this sentencing.
  • The parity principle requires a court to have regard to sentences imposed on co-offenders, though differences in role and individual circumstances can justify different sentencing outcomes across participants in the same enterprise.
  • Where an offender has been subject to a prolonged and restrictive curfew between charge and sentence, the court may treat that curtailment of liberty as a relevant factor in determining the appropriate penalty.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 113(2), 154A(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 7(1), 66

Cases:
- R v Elemes [2000] NSWCCA 235
- R v Reilly [2012] NSWCCA 166
- R v Youkhana [2004] NSWCCA 412