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District Court 10 July 2019

R v Yildiz

[2019] NSWDC 423

Assault & violenceTheft & property
CRIME SENTENCE ROBBERY IN COMPANY SPECIAL CIRCUMSTANCES TO VARY NON PAROLE RATIO.

Citation: R v Yildiz [2019] NSWDC 423
Court: District Court of New South Wales
Date: 10 July 2019
Judge: Colefax SC DCJ

Background

The offender, a young woman aged almost 18 and a half at the time, pleaded guilty to one count of robbery in company under s 97(1) of the Crimes Act 1900 (NSW). The offence carried a maximum penalty of 20 years' imprisonment and no standard non-parole period.

The offending took place on 28 July 2017. The offender, acting with four others, executed a plan to lure a 58-year-old man from a brothel carpark, deceive him into driving to a park, and then rob him. The offender played a central role: she approached the victim, maintained the pretence of a drug-and-sex arrangement to keep him compliant, and sent text messages to her male co-offenders directing them to the victim's location. The victim was then beaten by three men, during which the offender attempted to kick him, and a firearm was produced by co-offenders.

An earlier more serious charge, which alleged the offender had knowledge of the firearm, had proceeded to trial before the Crown discontinued it mid-hearing. The offender had offered to plead guilty to the lesser charge while proceedings were still in the Local Court.

  • What was the appropriate head sentence for robbery in company, applying the R v Henry guideline judgment?
  • What discount, if any, should apply for the guilty plea, having regard to when it was first offered?
  • Whether special circumstances existed to justify reducing the standard non-parole period ratio below 75%.
  • How to account for time spent on remand and extended periods on strict bail conditions.

Decision

His Honour found that full-time custody was the only appropriate sentencing option. Without the guilty plea, the court assessed the appropriate sentence at four years' imprisonment. The offender's role was significant: she was central to the planning and execution of the robbery, directed the co-offenders by text, and attempted to participate in the violence, even though the firearm's use was not within her contemplation.

The Crown's discontinuance of the firearm knowledge charge mid-trial was noted critically. The court found the Crown should have accepted the guilty plea when it was offered in the Local Court, given the weakness of that aspect of the Crown's case. Accordingly, a full 25 per cent discount was applied, reducing the head sentence to three years.

Special circumstances were found to exist on two grounds: the offender's young age at the time of the offence, and the fact that this would be her first period of full-time custody. These circumstances justified reducing the non-parole period below the standard 75 per cent ratio. The court also backdated the sentence by three months to reflect approximately one month in pre-sentence custody and an extended period on strict bail conditions, which the court treated as a form of quasi-custody.

Orders Made

  • Head sentence of three years' imprisonment for robbery in company
  • Non-parole period of 18 months, backdated to 10 April 2019, expiring 9 October 2020
  • Balance of term of 8 months, commencing 10 October 2020, expiring 9 April 2022

Key Takeaways

  • The District Court applied a full 25 per cent guilty plea discount where the Crown had declined to accept a plea offered at the earliest opportunity and the strength of the discontinued charge was, in the court's view, doubtful.
  • Special circumstances reducing the non-parole period below the standard 75 per cent ratio were established on the combined basis of the offender's youth at the time of offending and her status as a first-time custodial detainee.
  • A period of strict bail conditions, maintained over an extended period, was treated as a form of quasi-custody and factored into the backdating of the sentence alongside actual time on remand.
  • Where a co-offender produces a firearm during a robbery, a sentencing court may find the primary offender lacked knowledge of that escalation, limiting the extent to which it aggravates the primary offender's culpability.
  • Under the R v Henry guideline, robbery in company cases with no standard non-parole period still require the court to have regard to the guideline range when assessing the appropriate head sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(1) (robbery in company)

Cases
- R v Henry (1999) 46 NSWLR 346 (guideline judgment for robbery offences)
- Bugmy v R (2013) 249 CLR 571 (principles relevant to sentencing, including background and disadvantage)