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District Court 10 December 2018

R v Dowd

[2018] NSWDC 459

Assault & violenceTheft & propertyPublic order & justice offences
CRIMINAL SENTENCE ROBBERY IN COMPANY INTIMIDATION RESIST ARREST SUBJECTIVE MATTERS

Citation: R v Dowd [2018] NSWDC 459
Court: District Court of New South Wales
Date: 10 December 2018
Judge: Judge King SC DCJ

Background

The offender and a co-offender spent time with the victim, a woman they knew, at her home and at Maroubra Beach on 14 December 2016. After the victim drove them back to her address in Little Bay and asked them to leave, the offender stole her iPhone while the co-offender took her iPad and other items from inside the unit.

Later that evening, the offender returned to the victim's home at around 10:50pm. He climbed onto the victim's balcony carrying a large butcher's knife, forced open the sliding glass door, and confronted her while holding the knife pointed at her. He then fled through the front door when she told him she was calling police.

The following morning, officers attempted to arrest the offender near the same street. He declared the arrest unlawful, fled on foot, and was apprehended approximately 20 minutes later in nearby bushland.

  • What is the appropriate sentence for robbery in company under s 97(1) of the Crimes Act 1900?
  • What is the appropriate sentence for aggravated break and enter and commit a serious indictable offence (intimidation while armed) under s 112(2) of the Crimes Act 1900?
  • How should the Form 1 offence of resisting arrest be taken into account in the overall sentence?
  • What aggregate sentence appropriately reflects totality, the offender's subjective circumstances, and the need for a parole period to support rehabilitation?

Decision

Judge King SC DCJ sentenced the offender on two principal charges: robbery in company and aggravated break and enter while armed. The resisting arrest offence was taken into account on a Form 1, meaning it was considered in setting the overall sentence rather than attracting a separate penalty.

The court assessed each offence individually before arriving at an aggregate sentence. For the robbery in company, the indicative sentence was a non-parole period of two years with a balance of term of one year, totalling three years. For the aggravated break and enter, the indicative sentence was a non-parole period of two and a half years with a balance of term of one and a half years, totalling four years.

The court then imposed an aggregate sentence of five years, comprising a three-year non-parole period and a two-year balance of term. The non-parole period was reduced from the statutory proportion by nine months to allow for a more substantial period of parole supervision, reflecting that this was the offender's first significant period of custody and that an extended parole period was considered necessary to support his rehabilitation and address his drug problems.

The sentence was backdated to 14 January 2017, accounting for 124 days the offender had spent in pre-sentence custody. The offender becomes eligible for parole on 13 January 2020, with the total sentence expiring on 13 January 2022.

Orders Made

  • Convicted of robbery in company (s 97(1), Crimes Act 1900)
  • Convicted of aggravated break and enter and commit serious indictable offence while armed (s 112(2), Crimes Act 1900)
  • Aggregate sentence of five years' imprisonment imposed, with a non-parole period of three years
  • Sentence backdated to commence 14 January 2017
  • First eligible for parole: 13 January 2020
  • Total sentence to expire: 13 January 2022
  • Form 1 offence (resisting arrest) taken into account
  • A separate hinder arrest charge (H63580642, Sequence 3) withdrawn and dismissed

Key Takeaways

  • The District Court applied an aggregate sentencing approach, setting indicative sentences for each offence before determining an overall term that reflected the totality principle.
  • A non-parole period below the statutory proportion was justified where the offender had no prior significant custodial history and required an extended period of supervised parole to address drug dependency and reintegrate into the community.
  • Under s 32 of the Crimes (Sentencing Procedure) Act 1999, a Form 1 offence such as resisting arrest can be taken into account when sentencing for a related matter without attracting a separate penalty.
  • Sentencing statistics, while consulted through JIRS, were treated as having limited utility for determining an individual sentence, with the court noting their general nature.
  • Where pre-sentence custody has been served across non-continuous periods, the court may backdate the sentence commencement date to reflect the total days spent in custody on the relevant matter.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 97(1), 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 166

Cases: No cases were cited in the judgment.