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District Court 22 November 2019

R v Yong

[2019] NSWDC 769

Assault & violenceDrugsTheft & property
PAROLE PERIOD — RATIO OF THE NON PAROLE PERIOD AND BALANCE OF TERM

Citation: R v Yong [2019] NSWDC 769
Court: District Court of New South Wales
Date: 22 November 2019
Judge: Bennett SC DCJ

Background

The offender was presented for trial in the District Court on charges arising from a violent incident on 3 March 2018 at a residential property in Hurstville. The victim, an international student, had been driven to the property along with several other men, including co-offenders. During the incident, the victim was assaulted and then robbed of his mobile phones and cash at the direction of the offender and others, while being prevented from leaving.

The offender pleaded guilty two days after the trial was due to commence, on 28 August 2019. Two additional matters, a larceny of a Rolex watch belonging to the same victim and possession of methylamphetamine, were included on a Form 1 document and taken into account during sentencing for the principal offences.

At the time of sentencing, the offender was also held in immigration detention following the refusal of a protection visa application, and that detention period was the subject of a contested argument about whether it should be credited against his sentence.

  • What discount, if any, should apply for a guilty plea entered two days after the trial was listed to commence?
  • How should the Form 1 offences (larceny and drug possession) affect the sentence for robbery in company?
  • Whether time spent in immigration detention should be credited as pre-sentence custody?
  • How should the principle of parity apply, given that co-offenders were sentenced in the Local Court under offences carrying significantly lower maximum penalties?
  • Whether special circumstances existed to justify departing from the standard non-parole period ratio?

Decision

Bennett SC DCJ allowed a 10 percent discount for the late guilty pleas, acknowledging their limited utility but accepting that some credit was nonetheless warranted. The judge noted the plea was entered only after the trial was already under way, and the percentage reflected that limited practical benefit to the administration of justice.

On the Form 1 offences, the court applied the guidance from the Court of Criminal Appeal's guideline judgment and found the additional offences warranted a modest upward adjustment to the robbery sentence. The connection between the larceny and the robbery meant the increase was not significant, though the court noted the offender gained a practical advantage by avoiding prosecution on charges carrying maximum penalties of five and two years respectively.

The court declined to credit the period of immigration detention against the sentence. The offender's visa history showed the offending occurred in March 2018, and the immigration consequences that followed flowed from his broader conduct and criminal record, not solely from the offences before the court. The eight-month immigration detention period was therefore not treated as equivalent to pre-sentence custody.

On parity, the court acknowledged the co-offenders had received aggregate sentences of 15 and 18 months in the Local Court, but found that strict parity was not applicable. The offender faced a charge of robbery in company carrying a maximum of 20 years, a fundamentally more serious charge than those dealt with summarily. Special circumstances were found to exist, justifying a non-parole period shorter than the standard ratio.

Orders Made

  • The offender was convicted of common assault and robbery in company.
  • An aggregate sentence of 3 years and 4 months imprisonment was imposed, commencing 30 August 2019 and expiring 29 December 2022.
  • A non-parole period of 2 years was set, expiring 29 August 2021, on the basis of special circumstances.
  • The Form 1 offences (larceny and possession of methylamphetamine) were taken into account and the relevant certificate was made accordingly.

Key Takeaways

  • A guilty plea entered two days after trial was listed to commence attracted only a 10 percent discount, reflecting the limited utility of such a late concession.
  • Form 1 offences connected to the principal charge warrant only a modest sentencing increase, but the offender nonetheless gains a significant practical benefit by avoiding separate prosecution on those charges.
  • Time spent in immigration detention does not automatically qualify as pre-sentence custody to be credited against a sentence; the court will examine the extent to which the detention was causally linked to the specific offending before it.
  • Strict parity between co-offenders sentenced in different jurisdictions, under charges carrying materially different maximum penalties, does not operate as a binding constraint, though the sentencing court must still consider it.
  • Under the Crimes (Sentencing Procedure) Act 1999, a finding of special circumstances permits a non-parole period shorter than the standard ratio, and the District Court here applied that finding to set a two-year non-parole period within a total term of three years and four months.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61, 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Part 4 Division 1A
- 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 (guideline judgment on Form 1 offence considerations)