Citation: R v Al-Basry; R v Robinson [2019] NSWDC 437
Court: District Court of New South Wales
Date: 16 May 2019
Judge(s): M L Williams SC DCJ
Background
Two offenders, aged 25 and 38 respectively, appeared for sentencing after pleading guilty to aggravated break and enter and commit a serious indictable offence, namely robbery while armed with an offensive weapon, contrary to s 112(2) of the Crimes Act 1900. The maximum penalty for that offence is 20 years imprisonment, with a standard non-parole period of five years.
The offence occurred on the night of 10 May 2018. Text messages exchanged between the two men from 29 April 2018 onward showed that the older offender had planned the robbery and organised the younger offender's participation, including discussion of using a knife. That night, the younger offender broke into the home of a 69-year-old woman, dragged her from her bedroom while she was already on the phone to emergency services, and threatened her at knifepoint before stealing her handbag and car keys. Both men fled in the victim's car and were apprehended shortly afterwards by police.
Each offender also had a Form 1 matter (taking and driving a conveyance without consent) taken into account at sentencing. The younger offender faced an additional charge of negligent driving. Both had been in custody since the date of the offence.
Legal Issues
- What sentence was appropriate for each offender, taking into account the objective seriousness of the offence, personal circumstances, criminal history, and guilty plea discount?
- How should the court assess a claim of diagnosed schizophrenia for one offender, particularly where the mental health history contained inconsistencies?
- How should parity operate where two co-offenders participated in the same joint criminal enterprise but played different roles?
- How should Form 1 offences and a negligent driving charge be dealt with at sentence?
Decision
Guilty plea discount and custodial threshold. Both parties conceded, and the court accepted, that a 25% discount applied to reflect the utilitarian value of the guilty pleas. It was also conceded that the threshold for full-time custody under s 5 of the Crimes (Sentencing Procedure) Act 1999 was crossed for both offenders, meaning no non-custodial alternative was available. Sentences ran from the date of arrest, 10 May 2018.
Objective seriousness and aggravating factors. The court identified several significant aggravating features: the offence occurred in the victim's home, it was planned and organised over several weeks with explicit text communications about using a knife, and both offenders had prior criminal records. However, the court noted the absence of certain further aggravating circumstances such as vandalism, a series of break and enters, or infliction of actual bodily harm. On balance, the court determined that imposing the standard non-parole period was not appropriate for either offender.
Mental health and personal circumstances. The younger offender's diagnosis of schizophrenia was contested by the Crown. The court accepted it, drawing on Justice Health medical records that corroborated the diagnosis, and found it warranted a modest reduction in the assessment of objective criminality. His troubled background, including a period separated from his mother due to domestic violence and an established drug problem by age 18, was treated as relevant under the principle in Bugmy v The Queen. Similar background factors applied to the older offender. Both offenders' prospects of rehabilitation were assessed as reasonable. A claim of duress raised by the younger offender was not adopted as part of the agreed facts and was given no weight.
Parity. The court acknowledged that although both men were sentenced for the same joint criminal enterprise, their individual roles were to be assessed independently. Counsel for the younger offender conceded his role was arguably more serious. The court accepted the Crown's position that the overall mix of factors, including criminal history and role in the offence, justified a slightly longer sentence for the younger offender, producing outcomes that reflected genuine but not absolute parity.
Orders Made
Al-Basry:
- Convicted of aggravated break and enter and commit a serious indictable offence (with Form 1 offence of taking and driving without consent taken into account)
- Sentenced to 3 years and 2 months imprisonment, commencing 10 May 2018 and expiring 9 July 2021
- Non-parole period of 2 years and 1 month, expiring 9 June 2020
- Special circumstances found
- Convicted of negligent driving; no further penalty imposed (s 10A)
Robinson:
- Convicted of aggravated break and enter and commit a serious indictable offence (with Form 1 offence of taking and driving without consent taken into account)
- Sentenced to 3 years imprisonment, commencing 10 May 2018 and expiring 9 May 2021
- Non-parole period of 2 years, expiring 9 May 2020
- Special circumstances found
Key Takeaways
- A 25% sentencing discount for the utilitarian value of a guilty plea was applied to both offenders, consistent with established practice under the Crimes (Sentencing Procedure) Act 1999.
- Where co-offenders are sentenced for a joint criminal enterprise, parity principles apply but do not override the requirement to assess each offender's individual role and personal circumstances independently. A difference in sentence length can be justified where those factors diverge.
- Accepted medical records from Justice Health were sufficient to establish a diagnosis of schizophrenia despite inconsistencies in the offender's own account, and the diagnosis warranted a modest downward adjustment to assessed objective criminality.
- Childhood deprivation and disrupted family circumstances, consistent with the principles in Bugmy v The Queen (1990) 169 CLR 525, remained relevant mitigating considerations even for offenders with significant prior criminal histories.
- The standard non-parole period functions as a yardstick rather than a fixed starting point; the District Court declined to impose it where the particular facts of the offending, including the absence of certain further aggravating features, did not warrant it.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 10A
Cases:
- R v Thomas [2007] NSWCCA 269
- McDowall v The Queen [2019] NSWCCA 29
- Jinnette v R [2012] NSWCCA 217
- Bugmy v The Queen (1990) 169 CLR 525