Citation: R v Wen [2019] NSWDC 267
Court: District Court of New South Wales
Date: 18 June 2019
Judge: Colefax SC DCJ
Background
The offender had a prior grievance against the victim, stemming from a debt dispute involving a mutual friend. The offender had earlier threatened to assault the victim if he pursued repayment of money owed to him, and the victim had previously turned the offender away from his home because of that conduct.
In the early hours of 12 January 2018, the offender arranged for an associate to gain entry to the victim's home under false pretences. The offender then entered the home uninvited. Once inside, the offender produced a serrated knife and his associate produced a shortened rifle, which the offender later admitted he had sourced and provided. The victim was punched repeatedly, struck with a baton, and threatened at gunpoint while the offender ransacked the premises.
Property worth several thousand dollars was stolen, including an Omega watch and a Cartier engagement ring. During the incident, the rifle discharged through the kitchen floor, apparently unintentionally. The offender was arrested on 22 January 2018.
Legal Issues
- The appropriate sentence for robbery whilst armed with a dangerous weapon (a firearm), contrary to s 97(2) of the Crimes Act 1900 (NSW), carrying a maximum of 25 years imprisonment
- The appropriate sentence for possessing an unauthorised prohibited firearm, contrary to s 7(1) of the Firearms Act 1996 (NSW), carrying a maximum of 14 years imprisonment and a standard non-parole period of 4 years
- Whether the offender's conduct during the sentencing hearing warranted a reduction in the 25 per cent utilitarian discount for his early guilty plea
- The appropriate aggregate sentence and non-parole period
Decision
The court assessed the offending as serious. The robbery involved a home invasion, a firearm, a knife, repeated violence against the victim, and the theft of significant property. Although the accidental discharge of the rifle was accepted as unintentional, the firearm had been sourced by the offender himself.
His Honour found the offender lacked frankness throughout the sentencing hearing. The offender claimed he had never held a gun before, yet demonstrated familiarity with the rifle's mechanism by cocking the bolt after discharge. The account he gave of his associate's involvement was described as "most improbable." These findings reduced the weight given to his evidence in mitigation.
The offender also made unsubstantiated allegations against his former solicitor during the hearing, which prolonged proceedings and were ultimately not established. The court considered reducing the 25 per cent guilty plea discount on that basis, but declined to do so because the issue had not been raised during submissions. The court noted, however, that a referral of the former solicitor to the Office of the Legal Services Commissioner would not be necessary.
On the question of special circumstances (which in NSW allows a court to vary the standard ratio between the non-parole period and the total sentence), the court declined to make such a finding.
Orders Made
- Convicted on both principal offences
- Aggregate sentence of 7 years 6 months imprisonment
- Non-parole period of 5 years 6 months, commencing 22 January 2018 and expiring 21 July 2023
- Balance of term of 2 years, commencing 22 July 2023 and expiring 21 July 2025
- No reduction to the 25 per cent utilitarian discount for the early guilty plea
- No finding of special circumstances
Key Takeaways
- The District Court treated the sourcing and supply of a firearm used in the commission of a robbery as an aggravating feature, even where the weapon was physically carried by another person during the offence.
- A 25 per cent discount for an early guilty plea reflects its utilitarian value to the justice system; however, conduct during the sentencing hearing that is inconsistent or that wastes court time can put that discount at risk, as the judgment made plain.
- Unsubstantiated allegations made against former legal representatives during a sentencing hearing may expose those practitioners to scrutiny from the Legal Services Commissioner, even where the court ultimately takes no action against them.
- Where an offender's oral evidence contradicts the agreed facts or is internally inconsistent with the physical circumstances described, the sentencing court may treat this as a lack of frankness and reduce the weight afforded to mitigating claims.
- Under the aggregate sentencing approach, indicative sentences for each individual offence must still be stated; in this case, the first principal offence carried an indicative sentence of 6 years 4 months and the second 18 months, before being combined into the aggregate term.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 97(2) (robbery whilst armed with a dangerous weapon)
- Firearms Act 1996 (NSW), s 7(1) (possession of an unauthorised prohibited firearm)
Cases cited: None stated in the judgment.