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District Court 11 December 2018

R v Konaraki

[2018] NSWDC 521

Public order & justice offences

Citation: R v Konaraki [2018] NSWDC 521
Court: District Court of New South Wales
Date: 11 December 2018
Judge: Neilson DCJ

Background

The offender, a woman aged 20 at the time of the offence and 23 at sentence, pleaded guilty to detaining a male victim without his consent while in the company of four others, with the intention of obtaining a financial advantage. The charge arose from events on 17 December 2015 at Newington, NSW, and was brought under s 86(2)(a) of the Crimes Act 1900, which carries a maximum penalty of 20 years imprisonment with no standard non-parole period.

The background to the offence involved a debt dispute. A co-offender, Keshishian, had taken out a loan on behalf of the victim and arranged a meeting under false pretences when he fell behind on repayments. Keshishian, together with a group of males, planned to confront the victim, take his money, and steal his car. The offender's role was to assist in coordinating the group via text messages and to be present during the detention.

During the incident, the victim was physically assaulted, had $4,500 taken from him, and was driven against his will in his own vehicle before being left at a park in Guildford. The offender was present in the vehicle during this phase, relaying messages to Keshishian about the victim's condition. Her text messages during this period showed she was engaged with, and at times excited by, what was occurring, including sending messages threatening violence toward the victim, though she did not directly assault him.

  • What was the appropriate head sentence for the offence of detaining a person for financial advantage under s 86(2)(a) of the Crimes Act 1900?
  • What total discount was warranted, having regard to the late guilty plea and the offender's assistance to authorities?
  • Whether an Intensive Corrections Order (ICO) was appropriate given the offender's age, limited role, lack of prior convictions, and low risk of reoffending.

Decision

Neilson DCJ assessed the offender's role as very minor in the context of the broader offence. She did not physically assault the victim, was kept back from him at the park, and her participation was primarily communicative, relaying information by text message. While her messages showed enthusiasm for what was happening and included threats of personal violence, she did not act on those threats.

The court identified several mitigating factors: the offender was 20 at the time of the offence, had no prior criminal history, had a good work history, and was assessed as presenting a very low risk of reoffending. Some mental health concerns were noted but considered likely to diminish with increasing maturity.

A head sentence of two years imprisonment was set. The court applied a 25% discount to reflect both the guilty plea (the first of three co-offenders to plead guilty, though the plea was late) and the assistance offered to authorities, consistent with the approach in Barlow v R [2008] NSWCCA 96. This reduced the sentence to 18 months.

Given the offender's youth, minor role, low reoffending risk, and other favourable personal circumstances, the court accepted the submission that the sentence could be served by way of an Intensive Corrections Order in the community. A community service requirement of 600 hours was also imposed.

Orders Made

  • The offender was convicted of detaining a person without consent for financial advantage under s 86(2)(a) of the Crimes Act 1900.
  • Sentenced to imprisonment for 18 months, commencing 11 December 2018, to be served by way of Intensive Corrections Order in the community.
  • Conditions of the ICO included:
  • Must not commit any offence
  • Must submit to supervision by a Community Corrections officer
  • Must complete 600 hours of community service work
  • Must participate in rehabilitation or treatment programs as directed by Community Corrections
  • Must not associate with any co-offenders
  • Must report to the Community Corrections office at Parramatta within seven days

Key Takeaways

  • A combined discount of 25% was applied to reflect both a late guilty plea and assistance provided to authorities, with the offender being the first of three co-offenders to enter a plea.
  • Under s 86(2)(a) of the Crimes Act 1900, detention for financial advantage carries a maximum of 20 years imprisonment with no standard non-parole period, leaving significant sentencing discretion to the court.
  • The District Court treated the offender's peripheral, non-violent role as a significant mitigating factor, distinguishing her conduct from that of the co-offenders who physically assaulted the victim.
  • An Intensive Corrections Order was available and appropriate where the combination of youth, absence of prior convictions, minor role, low reoffending risk, and personal circumstances supported a community-based sentence.
  • Threatening text messages sent during an offence can be taken into account as part of the overall picture of an offender's conduct, even where the threats were not carried out.

Legislation and Cases Referenced

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

Cases:
- Barlow v R [2008] NSWCCA 96 (discount for guilty plea and assistance to authorities)