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District Court 4 December 2019

R v Glover; R v Ramos-Malo

[2019] NSWDC 789

Assault & violenceTheft & property

Citation: R v Glover; R v Ramos-Malo [2019] NSWDC 789
Court: District Court of New South Wales
Date: 4 December 2019
Judge(s): Bennett SC DCJ

Background

Two offenders, Glover and Ramos-Malo, pleaded guilty in the Local Court at Penrith to robbery in company under s 97(1) of the Crimes Act 1900 and were each committed to the District Court for sentence. The offence occurred in the early hours of 8 September 2018 in Penrith, when the two men targeted a 26-year-old stranger who was walking to meet his father after a night out.

The facts were substantially shared between the two offenders. The victim was confronted at a street corner, threatened repeatedly with violence, and robbed of his mobile phone, a Bluetooth speaker, a jacket, a gold ring, and credit cards. Ramos-Malo produced a knife and held it to the victim's stomach. Glover punched the victim in the face multiple times and headbutted him. The victim was forced to strip completely naked, was held against a brick wall at knifepoint, and was made to jump a fence before the offenders fled.

Glover had been released on parole only weeks before the offence and was returned to custody upon arrest. Ramos-Malo had been in custody continuously since his arrest on 8 September 2018. Both received a 25% guilty plea discount, consistent with the legislative scheme applying to early pleas entered in the Local Court.

  • What commencement date should apply to Glover's sentence, given that part of his pre-sentence custody was referable to a revoked parole period from an earlier offence?
  • How should the objective seriousness of the robbery be assessed?
  • What weight should be given to intoxication as a mitigating factor?
  • How should the sentences for two co-offenders be calibrated, having regard to their differing subjective circumstances?
  • Whether special circumstances existed to justify a departure from the standard ratio of non-parole period to head sentence.

Decision

Commencement of Glover's sentence: The court exercised its discretion, drawing on the principles in Callaghan v R [2006] NSWCCA 58, to commence Glover's sentence on 5 February 2019. Glover had been released to parole on 4 August 2018 and reoffended only five weeks later. The balance of his revoked parole ran until 4 February 2019, and the court found it appropriate to treat that entire period as referable to the earlier sentence, commencing the new sentence the day after the parole period expired.

Objective seriousness: The court assessed the offending as falling toward the midrange of objective seriousness. The robbery involved a weapon, was committed in company, included the application of force, and involved the deliberate humiliation of the victim by forcing him to strip naked. These features combined to place the offence in that range.

Intoxication: The court rejected intoxication as a mitigating factor, noting that s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 expressly prevents voluntary intoxication from operating to reduce sentence. The court also noted that Ramos-Malo's apparent intoxication was at least partly feigned.

Co-offender disparity: The court sentenced the two offenders separately, acknowledging comparable conduct but different subjective circumstances. Ramos-Malo demonstrated genuine remorse and strong rehabilitation prospects. Glover's criminal history was more serious, specific deterrence weighed more heavily in his case, and the court was not persuaded he had shown unqualified contrition. Ramos-Malo received a slightly lesser indicative sentence for the robbery offence, with his total sentence to be aggregated across multiple offences.

Orders Made

  • Glover: convicted of robbery in company; sentenced to a non-parole period of 3 years commencing 5 February 2019 (expiring 4 February 2022), with a balance of term of 2 years and 3 months expiring 4 May 2024.
  • Ramos-Malo: an indicative sentence of 5 years' imprisonment was specified for the robbery offence, to be incorporated into an aggregate sentence commencing 8 September 2018 (with other offences considered separately and not fully reproduced in the provided text).

Key Takeaways

  • The District Court confirmed that the commencement date of a new sentence, where parole has been revoked due to reoffending, is a matter of discretion rather than fixed rule, guided by the principles in Callaghan v R [2006] NSWCCA 58. Where reoffending occurs shortly after release and the balance of parole is brief, it may be appropriate to treat the entire parole balance as referable to the earlier sentence.
  • Voluntary intoxication cannot operate as a mitigating factor in sentencing under s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999, regardless of the degree of intoxication claimed.
  • Robbery in company involving a knife, physical violence, and the deliberate humiliation of a victim places the offence toward the midrange of objective seriousness on the scale for an offence carrying a 20-year maximum.
  • Where co-offenders engage in substantially comparable conduct, differences in criminal history, remorse, and rehabilitation prospects can nonetheless justify a measurable difference in the sentences imposed.
  • All of the statutory purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999 were engaged, including general deterrence, specific deterrence, community protection, denunciation, and recognition of harm to the victim.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1) (robbery)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(5AA), Pt 4 Div 1A

Cases:
- Bugmy v The Queen [2013] HCA 37
- Callaghan v R [2006] NSWCCA 58
- Fernando (1992) 76 A Crim R 58
- Henry (1999) 46 NSWLR 346
- McNaughton [2006] NSWCCA 242
- R v Qutami [2001] NSWCCA 353
- Tepania v R [2018] NSWCCA 247