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District Court 11 December 2018

R v Keshishian

[2018] NSWDC 520

Assault & violenceTheft & propertyPublic order & justice offences

Citation: R v Keshishian [2018] NSWDC 520
Court: District Court of New South Wales
Date: 11 December 2018
Judge: Neilson DCJ

Background

The offender, a woman aged 21 at the time of the offence and 24 at sentence, had lent $20,000 from a personal bank loan to a man she was in a casual relationship with. After he repaid only a small portion, she devised a plan with four others, including her then-partner and a close friend, to recover the debt by force.

On the evening of 17 December 2015, the offender lured the victim to a park in Newington under false pretences. While she kept him occupied on a bench, her co-offenders moved in, assaulted the victim, took $4,500 from his wallet, and forced him into his own car. The victim was then driven around and effectively held captive while demands were made of him, including that he transfer ownership of his Mercedes Benz.

The offender pleaded guilty, albeit late, to a charge of detaining a person without consent with the intention of obtaining a financial advantage, contrary to section 86(2)(a) of the Crimes Act 1900. The maximum penalty for this offence, commonly described as aggravated kidnapping, is 20 years imprisonment. There is no standard non-parole period.

  • What was the appropriate sentence, having regard to the objective seriousness of the offence and the offender's individual circumstances?
  • What discount, if any, should be applied for the late guilty plea?
  • What discount, if any, should be applied for assistance provided to authorities?
  • Whether the sentence should be served in the community by way of an Intensive Correction Order (ICO), including a home detention component.

Decision

Neilson DCJ identified a starting point of two years and five months imprisonment, reflecting the objective seriousness of an offence that involved planning, deception, physical violence against the victim, and the participation of multiple offenders. The court acknowledged that the offender was not the most culpable participant, noting that the level of violence was carried out by others, but she was the architect of the plan and used her personal relationship with the victim to facilitate the ambush.

A discount of 10% was applied for the late guilty plea. An additional 5% discount was granted for assistance to authorities: the offender had made a statement to police corroborating a co-offender's account about the roles of Hussein and Moh, which the court accepted probably contributed to Hussein's own guilty plea. The total discount of 15% reduced the sentence to two years imprisonment, rounded down.

The court had requested a sentencing assessment report on suitability for home detention. The report confirmed the offender was suitable. Neilson DCJ accepted submissions that an Intensive Correction Order, incorporating 18 months of home detention, was the appropriate vehicle for serving the sentence in the community. The court noted the offender's prior good character, low risk of reoffending, and genuine engagement in self-rehabilitation as significant factors in her favour.

Orders Made

  • The offender was convicted of detaining a person without consent with the intention of obtaining a financial advantage (s 86(2)(a), Crimes Act 1900).
  • Sentenced to two years imprisonment, commencing 11 December 2018, to be served by way of an Intensive Correction Order.
  • Terms of the ICO include:
  • No commission of any offence
  • Supervision by a Community Corrections Officer
  • Home detention for 18 months
  • Participation in rehabilitation or treatment programs as directed
  • No association with any co-offender
  • Report to the Community Corrections Office at Hornsby on the day of sentence

Key Takeaways

  • An offender who organises and facilitates an aggravated kidnapping, even if not the primary perpetrator of physical violence, bears significant culpability as the architect of the plan and the person who lured the victim.
  • A combined discount of 15% was available where separate grounds existed for a guilty plea (10%) and for assistance to authorities (5%), applied to reduce the starting sentence before determining the mode of service.
  • Under section 86(2)(a) of the Crimes Act 1900, detaining a person without consent to obtain a financial advantage carries a maximum of 20 years imprisonment with no standard non-parole period, placing significant weight on the judge's discretion in setting the starting point.
  • A favourable sentencing assessment report on home detention suitability, combined with evidence of prior good character, low reoffending risk, and active self-rehabilitation, supported the substitution of a full-time custodial term with an Intensive Correction Order.
  • Late guilty pleas still attract a discount, though the reduction will be smaller than that available for an early plea; the court here treated the timing as warranting 10% rather than the higher discounts associated with pleas entered at an early stage.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 86(2)(a) (taking or detaining a person for financial advantage, maximum 20 years imprisonment)

Cases cited: None cited in the judgment text or metadata.