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District Court 31 October 2019

R v Shareef

[2019] NSWDC 651

Fraud & dishonestyTheft & propertyFirearms & weapons

Citation: R v Shareef [2019] NSWDC 651
Court: District Court of New South Wales
Date: 31 October 2019
Judge: Bennett SC DCJ

Background

The offender pleaded guilty to robbery armed with an offensive weapon, contrary to s 97(1) of the Crimes Act 1900, arising from an incident on 19 June 2018 at Blacktown. He entered the business premises of a man he had known since 2003, pointed an object that appeared to be a silver-coloured pistol at the victim's head, and demanded money. The victim, who operated a perfume and cosmetics business and acted as a money transfer agent, handed over approximately $10,000 in cash along with a mobile phone, an iPhone, a driver's licence, and a bank card.

The offender and victim had a prior relationship spanning many years, during which the offender had occasionally borrowed money from the victim's business. CCTV footage across Blacktown captured the offender before, during, and after the robbery, and DNA evidence linked him to clothing he discarded in a nearby bin shortly after the offence.

At sentence proceedings, the offender also asked the court to take into account a Form 1 offence of recklessly dealing with the proceeds of crime, under s 193B(3) of the Crimes Act 1900. That charge related to his use of $7,000 from the robbery to purchase a motor vehicle two days after the incident.

  • What sentence was appropriate for armed robbery with an offensive weapon, having regard to the objective seriousness of the offence and the offender's subjective circumstances?
  • How should the Form 1 offence of recklessly dealing with proceeds of crime affect the sentence?
  • What discount applied for the early guilty plea entered in the Local Court?
  • Whether special circumstances existed to justify a departure from the standard ratio between the non-parole period and the head sentence?

Decision

The District Court assessed the robbery as a serious offence involving the presentation of what appeared to be a firearm, a degree of pre-planning (including the acquisition of a disguise), and exploitation of an established relationship of trust with the victim. The victim suffered significant distress, as reflected in his triple-0 call immediately after the offence. Mitigating factors included the offender's demonstrated contrition, his written acknowledgment of harm caused, his account of the impact of substance abuse on his life, and such prospects of rehabilitation as the evidence supported.

Bennett SC DCJ applied a 25% discount to reflect the early guilty plea in the Local Court, in accordance with the relevant provisions of the Criminal Procedure Act 1986. The court observed, however, that the Crown case was strong and that the utilitarian value of the plea was to be assessed against that backdrop.

On the Form 1 offence, the court noted the dual considerations identified in Attorney-General's Application [2002] NSWCCA 518: the offender gained the benefit of not being sentenced separately for the proceeds of crime offence, but the primary sentence was increased to reflect the additional criminality and to address personal deterrence and community retribution for the full extent of the offending.

Special circumstances were found to exist, warranting an extended parole period beyond the statutory norm. The court considered that a longer period of supervised release would better support the offender's continued rehabilitation and reduce the risk of relapse, given his history of drug use and prior returns to offending when circumstances became difficult.

Orders Made

  • The offender was convicted of robbery armed with an offensive weapon.
  • Sentenced to a total term of imprisonment of 4 years and 6 months.
  • Non-parole period of 3 years, commencing 19 September 2018 and expiring 18 September 2021.
  • Parole period to expire 18 March 2023.
  • The Form 1 offence of recklessly dealing with the proceeds of crime was certified and taken into account.

Key Takeaways

  • A Form 1 offence taken into account at sentence serves a dual function: it benefits the offender by avoiding a separate sentence, but it also increases the primary sentence to reflect the fuller extent of the criminality, with particular weight given to personal deterrence and community retribution.
  • Where the Crown case is strong, the utilitarian value of a guilty plea is reduced, though a 25% discount remained available here for a plea entered in the Local Court under the applicable legislative regime.
  • Special circumstances justifying an extended parole period may exist where an offender has a documented history of relapse and requires a longer period of supervised release to consolidate rehabilitation.
  • Under R v Henry & Ors (1999) 46 NSWLR 346, the use of a weapon incapable of causing actual physical harm, and limited planning, are factors that may reduce the objective gravity of an armed robbery, though they do not eliminate it.
  • Drug misuse that is characterised as a lifestyle choice, rather than arising from circumstances of deprivation or compulsion, carries limited mitigatory weight in sentencing, even where it is causally connected to the offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 97(1) and 193B(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4 Div 1A; s 37
- Criminal Procedure Act 1986 (NSW)

Cases:
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518
- R v Henry & Ors (1999) 46 NSWLR 346