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District Court 15 July 2019

R v Vittori

[2019] NSWDC 583

Assault & violenceTheft & propertyFirearms & weapons
PAROLE PERIOD — RATIO OF THE NON

Citation: R v Vittori [2019] NSWDC 583
Court: District Court of New South Wales
Date: 15 July 2019
Judge: Bennett SC DCJ

Background

The offender, a 21-year-old woman, pleaded guilty in the Local Court to assault with intent to rob while armed with a dangerous weapon, contrary to s 97(2) of the Crimes Act 1900. The offence occurred in the early hours of 6 September 2018 at North Strathfield, when she confronted the victim while in possession of what turned out to be a toy pistol. The Crown conceded it could not prove the weapon was a real firearm, though it remained a "dangerous weapon" for the purposes of the relevant legislation.

A related offence of possessing an unauthorised firearm (the same toy pistol) was also before the District Court under s 166 of the Criminal Procedure Act 1986. The offender additionally asked the court to take into account two further matters on a Form 1: possession of ammunition without a licence, and wearing a police uniform without being a police officer.

At the time of the offences, the offender was on bail for separate matters and subject to two conditional release bonds under s 9 of the Crimes (Sentencing Procedure) Act 1999. She had a prior record of antecedent offences and had also served a four-month sentence for a supply-prohibited-drug offence while on remand for the present matters.

  • What sentence was appropriate for the principal offence of assault with intent to rob while armed with a dangerous weapon, given the weapon was a toy pistol?
  • How should the Form 1 offences (ammunition possession and wearing police uniform) affect the sentence for the principal offence?
  • What discount applied for the guilty plea, and at what stage was it entered?
  • Whether special circumstances existed justifying a non-parole period shorter than the statutory default ratio under s 44 of the Crimes (Sentencing Procedure) Act 1999.
  • How the prior drug supply sentence (served while on remand) should interact with the current sentence under the principle of totality.
  • Whether the bond breaches should be formally dealt with, and on what terms.

Decision

Bennett SC DCJ imposed an aggregate sentence of 4 years and 6 months, comprising an indicative term of 4 years and 3 months for the principal offence and 1 year and 1 month for the firearms offence. A 25% guilty plea discount was applied to both sentences, consistent with R v Borkowski [2009] NSWCCA 102, reflecting the utility of the early plea. His Honour noted the discount in practice marginally exceeded 25% because days beyond full months were abandoned in calculating the final figures.

The Form 1 offences warranted a modest but real increase to the principal sentence. His Honour applied the guideline in Attorney General's Application No 1 of 2002, which requires a court to increase the sentence for the principal offence to reflect the broader misconduct and the community's entitlement to retribution, as well as the personal deterrence weight arising from the full picture of the offender's conduct. Given the circumstances of the Form 1 matters, the increase was described as marginal.

Special circumstances were found under s 44 of the Crimes (Sentencing Procedure) Act 1999, justifying a non-parole period of 2 years and 3 months (exactly half the aggregate term, rather than the statutory default of three-quarters). The primary reasons were the offender's age, this being her first period of adult custody, and the court's concern to avoid institutionalisation that might increase the risk of reoffending. A longer parole period was considered necessary to support rehabilitation.

On totality, his Honour declined to backdate or partially concur the present sentence with the earlier drug supply sentence, which had been for a wholly unrelated offence committed approximately five months before the robbery sequence. The current sentence was accumulated, commencing 7 January 2019. The bond breaches were formally found, but no additional penalty was imposed under s 10A of the Crimes (Sentencing Procedure) Act 1999, given the sentence already being imposed.

Orders Made

  • Aggregate sentence of 4 years and 6 months imprisonment, commencing 7 January 2019.
  • Non-parole period of 2 years and 3 months; eligibility for release to parole on 6 April 2021.
  • Indicative sentence of 4 years and 3 months for assault with intent to rob while armed with a dangerous weapon (principal offence).
  • Indicative sentence of 1 year and 1 month for possession of an unauthorised firearm.
  • Form 1 offences (ammunition possession; wearing police uniform) taken into account.
  • Bond breaches found; no further penalty imposed under s 10A Crimes (Sentencing Procedure) Act 1999.
  • No referral to the compulsory drug treatment program.

Key Takeaways

  • A toy pistol may still constitute a "dangerous weapon" and an "unauthorised firearm" under the Firearms Act 1996, even where the Crown concedes it cannot prove the weapon was real. The legal classification turns on the statutory definitions, not the weapon's actual lethality.

  • Under the Attorney General's Application No 1 of 2002 guideline, Form 1 offences require a court to increase the principal sentence to reflect the totality of misconduct and the weight owed to retribution and personal deterrence, though the extent of the increase depends on the circumstances of those additional offences.

  • Special circumstances justifying departure from the default non-parole period ratio can be established where the offender is young, this is their first experience of adult custody, and there is a genuine rehabilitation rationale for an extended period on supervised parole.

  • The District Court declined to apply concurrency between wholly unrelated sentences under the totality principle, where the prior offence preceded the principal offending by several months and the two matters had no factual connection.

  • Offending on conditional liberty, including breach of bail and of s 9 bonds, is an aggravating feature at sentencing, though the court may decline to impose a separate penalty for bond breaches where a substantial custodial sentence is already being imposed.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 10A, 44
- Criminal Procedure Act 1986 (NSW), s 166
- Firearms Act 1996 (NSW), ss 7A(1), 65(3)
- Police Act 1990 (NSW), s 203(1)
- Children (Criminal Proceedings) Act 1987 (NSW)

Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1996 No 1 of 2002 [2002] NSWCCA 518 (guideline judgment on Form 1 offences)
- R v Borkowski [2009] NSWCCA 102 (guilty plea discount)
- Bugmy v R [2013] HCA 37
- R v Henry [1999] NSWCCA 111
- R v Millwood [2012] NSWCCA 2
- R v Qutami [2001] NSWCCA 353
- Tepania v R [2018] NSWCCA 247