Citation: R v Nateghi [2019] NSWDC 815
Court: District Court of New South Wales
Date: 16 December 2019
Judge(s): King SC DCJ
Background
The offender appeared for sentence on a charge of aggravated take and drive a motor vehicle with a person in it, contrary to s 154C(2) of the Crimes Act 1900. The charge arose from an incident on 1 January 2019 in which he approached a woman waiting in her parked Toyota Yaris at night, produced a kitchen knife, demanded she hand over her keys, and drove away in the vehicle.
Over the following two and a half weeks, the offender continued to use the stolen vehicle, twice stealing registration plates from other cars to affix to it, driving away from a petrol station without paying for fuel, and evading police in a dangerous pursuit through residential streets. He was disqualified from driving until 2027 throughout this entire period. All of the offending occurred while he was on bail.
The offender pleaded guilty at the earliest opportunity and was committed to the District Court for sentence. Three related offences (two counts of larceny and one count of dishonestly obtaining a benefit by deception) were placed before the Court on a Form 1 to be taken into account, and further offences of police pursuit and driving whilst disqualified were dealt with on a s 166 certificate as related offences.
Legal Issues
- What aggregate sentence was appropriate for the principal offence of aggravated take and drive with a person in the vehicle, having regard to the standard non-parole period of five years?
- What discount applied for the early guilty plea?
- How should the Form 1 and s 166 certificate offences affect the overall sentence?
- How should the commencement date of the sentence be calculated, given the offender had served time in custody and had separately received sentences in related proceedings subject to a severity appeal?
Decision
King SC DCJ identified the aggravated carjacking as the principal offence and the most serious matter for sentencing. The offender had approached his victim deliberately, having surveilled the area using CCTV-accessible routes, and had used a knife to threaten her. The Court treated the use of the knife and the premeditated nature of the offending as significant aggravating features.
The offending while on bail was a further aggravating factor under the Crimes (Sentencing Procedure) Act 1999. However, the Court accepted a 25% discount on sentence in accordance with Thomson; Houlton (2000) 49 NSWLR 383 because the offender had entered his guilty plea at the earliest opportunity. The Court also took into account subjective matters, including the offender's reported heavy alcohol consumption during the relevant period, though the extent to which this mitigated the seriousness of the conduct was limited.
On the commencement date, the Court declined to backdate the sentence to the date of arrest on 17 January 2019. A magistrate had separately imposed sentences totalling a non-parole period of 12 months from 24 June 2019, arising from different offences that were the subject of a severity appeal. The Court held it would be inappropriate to allow those offences to go unpunished in practical terms by subsuming that period into the current sentence. Instead, the Court fixed the commencement date at 20 January 2020, backdated from 24 June 2020 to credit the 156 days the offender spent in custody between 19 January 2019 and 23 June 2019 exclusively referable to the current proceedings.
An aggregate sentence of seven years was imposed, with a non-parole period of five years and a balance of term of two years, structured to preserve the statutory relationship between the non-parole period (75% of the total) and the balance of term (25%).
Orders Made
• Aggregate sentence of seven years imprisonment with a non-parole period of five years and a balance of term of two years
• Sentence to commence on 20 January 2020
• First eligible for parole on 19 January 2025
• Sentence to expire on 19 January 2027
• Automatic period of disqualification of one year applies to aggravated take and drive offence
The following sentence particulars were recorded in the judgment:
- Aggregate sentence of seven years' imprisonment
- Commencement date: 20 January 2020
- First eligible for parole: 19 January 2025
- Sentence expiry: 19 January 2027
- Licence disqualification periods applied to the police pursuit and drive whilst disqualified offences (specific terms not reproduced in the provided text)
Key Takeaways
- The District Court applied the standard non-parole period of five years for aggravated take and drive with a person in the vehicle under s 154C(2) of the Crimes Act 1900 as a guidepost even where a guilty plea was entered.
- A 25% discount for the utilitarian value of an early guilty plea was applied, consistent with Thomson; Houlton (2000) 49 NSWLR 383.
- Offending committed while on bail operates as a statutory aggravating factor and was treated as such in calculating the appropriate sentence.
- Where an offender has served, or is serving, time in custody referable to separate proceedings, a sentencing court may decline to backdate a new sentence to the original date of arrest if doing so would effectively extinguish the practical operation of the earlier sentences.
- Credit for pre-sentence custody is calculated by reference only to the period spent in custody that is exclusively referable to the offences being sentenced, not to any overlapping period attributable to other proceedings.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), including s 154C(2) (aggravated take and drive) and s 51B(1) (police pursuit)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 32 (Form 1) and s 166 (related offences certificate)
- Road Transport Act 2013 (NSW), s 54(1)(a) (drive whilst disqualified)
Cases
- Thomson; Houlton (2000) 49 NSWLR 383 (guilty plea discount)
- Ibrahimi [2005] NSWCCA 153
- Qutami [2001] NSWCCA 353
- R v Richards (1981) 2 NSWLR 465