Citation: R v Jado [2019] NSWDC 690
Court: District Court of New South Wales
Date: 4 November 2019
Judge: Bennett SC DCJ
Background
The offender, a 20-year-old man, pleaded guilty to four serious offences arising from events on 22 December 2017 at Fairfield Heights. Together with two co-offenders, he detained two young men without their consent while intending to rob them, and then robbed each victim of cash and a mobile phone. In one instance, actual bodily harm was occasioned to a victim during the detention.
The offender was also subject to two good behaviour bonds at the time of the offences. Those bonds had been imposed in December 2017 for driving whilst suspended, offences themselves marked by additional misconduct including running a stop sign and travelling at 121 km/h in a 60 km/h zone.
Two further offences of demanding property with menaces from each victim were placed on a Form 1 to be taken into account on sentencing. The offender had fled to Victoria after his initial arrest in December 2017, forfeiting his bail, and had been in custody since 12 March 2019.
Legal Issues
- Whether the existing good behaviour bonds should be revoked following the commission of new offences, and what penalty should be imposed for the underlying driving offences
- What aggregate sentence was appropriate for the four principal offences, having regard to the objective seriousness of the conduct, the Form 1 offences, and the applicable sentencing principles
- What discount applied for the early guilty pleas
- Whether an additional discount was warranted under s 23 of the Crimes (Sentencing Procedure) Act 1999 for assistance to authorities
- Whether special circumstances existed to justify a non-parole period of less than the standard statutory proportion
- How the Henry guideline judgment on armed robbery should be applied in the context of multiple offenders over a protracted period
Decision
Bennett SC DCJ revoked both good behaviour bonds, noting that the offender had committed the serious principal offences while subject to conditional liberty. For the first driving offence, the judge imposed no penalty under s 10A of the Crimes (Sentencing Procedure) Act 1999. For the second, a fixed term of one month's imprisonment was specified as an indicative sentence.
On the principal offences, the judge found the objective gravity of the conduct to be serious. Three offenders had detained two situationally vulnerable young men walking through Fairfield West at night over a protracted period, before robbing each of them. The Form 1 offences overlapped substantially with the principal charges but required some upward adjustment to reflect personal deterrence and the community's entitlement to retribution for the full range of the conduct.
The judge declined to apply an additional discount for assistance to authorities under s 23, concluding that the offender's cooperation with police, including participating in an interview and providing a confirming statement, was better characterised as evidence of contrition and remorse rather than qualifying assistance. A 25% discount for the early guilty pleas was applied across all indicative sentences.
Special circumstances were found to exist, justifying a non-parole period of half the total term rather than the standard two-thirds. The judge identified the offender's youth, modest criminal record, and strong rehabilitation prospects as significant subjective factors, while acknowledging that the commission of offences on conditional liberty and the antecedent record were aggravating in the assessment of leniency and community protection.
Orders Made
- Good behaviour bonds revoked in respect of both driving whilst suspended offences
- For the first driving offence: no penalty imposed under s 10A of the Crimes (Sentencing Procedure) Act 1999
- For the second driving offence: indicative fixed term of one month's imprisonment
- Specially aggravated kidnapping in company of victim GS: indicative sentence of four years' imprisonment
- Aggravated kidnapping of victim MD, robbery in company of MD, and robbery in company of GS: indicative sentences of three years' imprisonment each
- Aggregate sentence of five years' imprisonment commencing 11 March 2019 and expiring 10 March 2024
- Non-parole period of two and a half years, expiring 10 September 2021, on a finding of special circumstances
Key Takeaways
- An early guilty plea attracted a 25% discount applied to each indicative sentence, calculated after synthesising objective and subjective factors including contrition, remorse, and rehabilitation prospects.
- Cooperation with police through interview and a confirming statement does not automatically attract a discount under s 23 of the Crimes (Sentencing Procedure) Act 1999; such conduct may instead be treated as evidence of contrition and remorse within the ordinary sentencing exercise.
- Form 1 offences that substantially overlap with the principal charges warrant only a modest increase to the sentence, though some uplift remains necessary to reflect personal deterrence and the full range of the offending.
- The Henry guideline judgment on armed robbery under s 97(1) of the Crimes Act 1900 applies by comparison in cases involving robbery in company, but significant contrasts, such as multiple offenders and a prolonged course of conduct, are material to how the guideline is applied.
- A finding of special circumstances permitted a non-parole period equal to half the total term, reflecting the offender's youth and rehabilitation prospects, even where commission of offences during conditional liberty weighed against leniency.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 86(2)(a), 86(3), 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 10A, 23; Pt 4 Div 1A; s 21A
- Fines Act 1996 (NSW), s 66
Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518
- Henry [1999] NSWCCA 107