AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 6 February 2019

R v Jibran

[2019] NSWDC 317

Assault & violenceTheft & propertyTraffic & driving
CRIME SENTENCE AGGRAVATED KIDNAPPING DRIVE WHILST DISQUALIFIED DESTRUCTION OF PROPERTY.

Citation: R v Jibran [2019] NSWDC 317
Court: District Court of New South Wales
Date: 6 February 2019
Judge: Colefax SC DCJ

Background

The offender, a 31-year-old man, appeared for sentencing on three offences arising from events on the night of 4 May 2018. He had been released on bail earlier that day before driving to meet a woman with whom he had previously had an affair.

Over the course of that night, an argument developed as the woman repeatedly tried to go home. When she called triple-0 from a street in Concord, the offender took her phone, covered her mouth, pushed her into the back of the car, locked the door, and drove off, throwing her phone from the window. The woman was so frightened that she jumped from the moving vehicle, sustaining grazes and cuts. She then hid from the offender by climbing over a neighbouring fence. The offender went looking for her, telling a nearby resident that she was his "girlfriend" and falsely claiming she was a drug addict.

The three charges were: aggravated kidnapping (taking or detaining a person with intent to obtain an advantage) under s 86(2)(b) of the Crimes Act 1900 (NSW); destroying property under s 195(1)(a) of the same Act (constituted by throwing her phone from the car); and driving whilst disqualified under s 54(1)(a) of the Road Transport Act 2013. The offender had been disqualified from obtaining a licence until 2024 and had never held one.

  • What were the appropriate indicative and aggregate sentences for each of the three offences?
  • How should the 25% guilty plea discount apply to each offence?
  • Whether special circumstances existed to justify departing from the standard ratio of non-parole period to head sentence.
  • What weight should be given to the offender's subjective circumstances, including the psychologist's report, the sentencing assessment report, and claimed remorse?

Decision

His Honour assessed the objective seriousness of the offences separately. The aggravated kidnapping was placed slightly below mid-range for offences of that kind. The property damage was towards, but not at, the bottom of the range. The disqualified driving was at the top of its range. All three offences were further aggravated by the fact that the offender had committed them while on bail.

The court found that the offender was not genuinely remorseful. His account to the psychologist minimised the severity of the violence, and his refusal to allow verification of key claims, including the prospects of reconciliation with his wife and the availability of employment, undermined the weight of his subjective case. His prospects of rehabilitation were described as "guarded at best." The offender also had a prior criminal history including multiple driving offences, a prior violence offence, and dishonesty offences, which disentitled him to the leniency ordinarily available to a first offender.

The offender was entitled to a 25% discount on each sentence for his early guilty plea. His Honour applied indicative sentences before arriving at an aggregate term. Although the Crown conceded that a finding of special circumstances could be made (which would allow a shorter non-parole period relative to the head sentence), His Honour declined to do so. The offender's first period of custody was not, of itself, sufficient reason, and a longer parole period would not enhance rehabilitation prospects.

Orders Made

  • Aggregate sentence of 4 years' imprisonment imposed.
  • Non-parole period of 3 years fixed, backdated to commence 5 July 2018 and expiring 4 July 2021.
  • Balance of term of 1 year to commence 5 July 2021 and expire 4 July 2022.

Indicative sentences (before aggregation):
- Aggravated kidnapping: 3 years' imprisonment (4 years minus 25% discount).
- Driving whilst disqualified: 9 months' imprisonment (12 months minus 25% discount).
- Destroying property: 4 months' imprisonment (6 months minus 25% discount).

Key Takeaways

  • A 25% discount on sentence applied across all three offences because the offender entered guilty pleas at the first available opportunity, consistent with established sentencing principles.
  • Committing offences while on bail operated as an aggravating factor for each of the three charges, separate from their individual objective seriousness.
  • Claimed remorse carried little weight where the offender minimised the severity of his conduct and refused to allow the court to verify key aspects of his personal circumstances through independent inquiry.
  • The District Court declined to find special circumstances despite this being the offender's first period of imprisonment, holding that a first custodial sentence is not, by itself, a sufficient basis to extend the parole period beyond the statutory ratio.
  • Where an offender has a prior history of relevant offending, including violence and repeat driving disqualifications, the sentencing court will not extend the leniency ordinarily available to those who appear before it for the first time.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 86(2)(b) (aggravated kidnapping), 195(1)(a) (destroying property)
- Road Transport Act 2013 (NSW), s 54(1)(a) (driving whilst disqualified)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 5 (threshold for full-time imprisonment); s 166 (certificate matters from Local Court)

Cases:
- Two decisions of the Court of Criminal Appeal were cited during submissions on the aggravated kidnapping sentence; the judgment does not identify them by name.