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District Court 16 December 2019

R v Dervish

[2019] NSWDC 745

Assault & violenceTheft & property
CRIME SENTENCE ROBBERY ROBBERY ARMED WITH AN OFFENSIVE WEAPON

Citation: R v Dervish [2019] NSWDC 745
Court: District Court of New South Wales
Date: 16 December 2019
Judge: Colefax SC DCJ

Background

The offender appeared for sentence on two robbery offences committed on 3 June and 11 June 2016, when he was nearly 25 years old. Both offences arose from encounters arranged through the Grindr app, a platform used by men to arrange meetings with other men. Sentencing was significantly delayed because the offender left Australia shortly after committing the offences and did not return until early 2018.

The first offence involved the offender meeting a man (referred to by the pseudonym William) through the app, attending his car, and then demanding his iPhone and cash under threat of violence. The offender threatened to punch William five times and threatened to kill him. William handed over his phone and $50 in cash.

The second offence, committed eight days later, was more serious. The offender visited the home of another man (referred to as Lachlan), engaged in consensual sexual activity, and then bound Lachlan's hands with rope and his legs with a chain. The offender had brought a bag containing a hammer, chain, industrial mask, and rope. He then appeared wearing the mask and holding the hammer, threatened to "smash" Lachlan's head in, and stole a laptop, passport, wallet, and other items. The offender also subsequently phoned Lachlan, apparently attempting to extort further money in exchange for returning the passport.

  • What sentence was appropriate for robbery under s 94 of the Crimes Act 1900 (NSW), carrying a maximum of 14 years imprisonment?
  • What sentence was appropriate for robbery armed with an offensive weapon under s 97(1) of the Crimes Act 1900 (NSW), carrying a maximum of 20 years imprisonment, having regard to the guideline judgment in R v Henry?
  • Whether an aggregate sentence was appropriate, and if so, how indicative sentences should be structured given two separate victims on two separate occasions.
  • Whether special circumstances existed to justify varying the standard ratio between the non-parole period and the head sentence.

Decision

Colefax SC DCJ assessed the first offence (robbery of William) as falling somewhere between the middle and the bottom of the range for objective seriousness. Aggravating features included the threatened use of violence and the vulnerability of the victim given the time and isolated location of the offence.

The second offence (armed robbery of Lachlan) was treated as more serious, attracting an indicative sentence of 4 years before discount. The court noted significant discrepancies and inconsistencies between the accounts the offender gave to various experts and the agreed statement of facts. These included inconsistencies about his prior sexual experiences and about whether there had been any prior agreement with Lachlan to bring rope. While these inconsistencies did not negate rehabilitation prospects, they tempered the weight given to subjective evidence and maintained the relevance of specific deterrence.

Both pleas of guilty were entered at the first available opportunity, attracting a 25 per cent discount in each case. The indicative sentence for the first offence was reduced from 18 months to 1 year 1 month, and for the second offence from 4 years to 3 years. The court imposed an aggregate sentence of 3 years 6 months, with partial accumulation reflecting the existence of two separate victims.

The court found special circumstances justifying a longer parole period relative to the non-parole period. The four reasons were the offender's age, that this was his first period of imprisonment, his ongoing psychological issues, and the assessment that a longer parole period would enhance rehabilitation prospects. The court described the offender's rehabilitation prospects as now being good, and noted that his psychological background made him a less suitable candidate for the full weight of general deterrence.

Orders Made

  • Aggregate term of imprisonment of 3 years 6 months imposed for robbery (s 94) and robbery armed with an offensive weapon (s 97(1)).
  • Non-parole period of 18 months, commencing 16 December 2019 and expiring 15 June 2021.
  • Balance of term of 2 years, commencing 16 June 2021 and expiring 15 June 2023.
  • Finding of special circumstances made to vary the standard ratio of non-parole period to head sentence.
  • Non-publication order made in respect of the names and identifying details of both victims.

Key Takeaways

  • The District Court applied the R v Henry guideline judgment in assessing the appropriate range for the armed robbery offence under s 97(1) of the Crimes Act 1900, which carries a maximum of 20 years and has no standard non-parole period.
  • Where an offender commits two separate offences against two separate victims, a fully concurrent sentence is not appropriate; partial accumulation is required to reflect the distinct criminality involved in each offence.
  • Inconsistencies between an offender's accounts to experts and the agreed statement of facts do not necessarily defeat a finding of good rehabilitation prospects, but the court may treat them as a reason to maintain the relevance of specific deterrence.
  • Special circumstances warranting a departure from the standard non-parole period ratio may be established by a combination of factors: youth, first-time imprisonment, ongoing psychological issues, and the rehabilitative benefit of an extended parole period.
  • A 25 per cent sentencing discount applies where guilty pleas are entered at the first available opportunity.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 94 (robbery) and 97(1) (robbery armed with an offensive weapon)

Cases:
- R v Henry (1999) 46 NSWLR 346 (guideline judgment for armed robbery sentencing)