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District Court 17 December 2019

R v Pash

[2019] NSWDC 842

Assault & violenceTheft & property
CRIMINAL SENTENCE AGGRAVATED ASSAULT WITH INTENT TO ROB S166 MATTERS COMMON ASSAULT COWARD’S PUNCH

Citation: R v Pash [2019] NSWDC 842
Court: District Court of New South Wales
Date: 17 December 2019
Judge(s): King SC DCJ

Background

The offender pleaded guilty to aggravated assault with intent to rob, arising from an incident at Kogarah Railway Station on 9 July 2018. He approached a victim on a platform, struck him with an unprovoked punch to the face (a "coward's punch"), and demanded money, a mobile phone, or a wallet. After initially retreating, he returned and attempted to assault the victim a second time before the victim fled to railway security.

Later that same day, the offender and an unidentified male entered a BWS liquor store at a nearby shopping centre and concealed bottles of alcohol under their clothing. When a Woolworths employee intervened, the offender punched him in the face and left with the stolen goods.

Two additional offences, a common assault and a larceny (shoplifting), were included on a section 166 certificate as related matters. These would ordinarily have been dealt with in the Local Court but were joined to the more serious charge because of their temporal connection to the railway station incident.

  • What was the appropriate objective seriousness of the aggravated assault with intent to rob, and what role did the knife and the company of the unidentified male play in that assessment?
  • Whether the offending was pre-planned, and how that affected the sentencing exercise.
  • What weight should be given to the late guilty plea, and what discount applied?
  • How should the aggregate sentence be structured, and how should it interact with a previously imposed sentence and period in custody?

Decision

King SC DCJ found the principal offence to be objectively serious. Although the knife was visible on CCTV on two occasions, it played no part in any of the offending and was not treated as an aggravating feature. The aggravation under section 95(1) arose from the use of corporal violence rather than the offender being in company. The court also found that the unidentified male was not acting in company with the offender at the time of the railway offence, based on the facts as charged.

The court drew a strong inference from the circumstances, including the offender arriving at the station with a knife and glove and hovering near potential victims, that the attendance at the station was pre-planned for the purpose of finding someone to rob. His Honour nonetheless acknowledged it was impossible to determine precisely how far in advance any plan was formed.

King SC DCJ applied the sentencing principle from R v Ranse (affirmed in R v Ibrahimi) that offences involving direct attacks on persons going about their lawful business constitute serious breaches of the peace. The victim's right to use public transport without fear of random violence was specifically recognised. The assault on the Woolworths employee who intervened during the shoplifting was treated as compounding the gravity of that episode.

A discount of 5% was applied for the utility of the guilty plea, reflecting its late timing, entered only five days before the scheduled trial date. The court imposed an aggregate sentence, with indicative terms set for each individual offence.

Orders Made

  • Aggravated assault with intent to rob (s 95(1) Crimes Act 1900): indicative sentence of three years' imprisonment.
  • Common assault (s 61): indicative sentence of six months' imprisonment.
  • Larceny/shoplifting (s 117): indicative sentence of six months' imprisonment.
  • Aggregate sentence: three years and six months' imprisonment, with a non-parole period of two years.
  • Sentence backdated to commence 12 August 2019, accounting for time already served and two months' credit from a previously imposed non-parole period.
  • First eligible for parole: 11 August 2021.
  • Total sentence expires: 11 February 2023.
  • A 5% plea discount was recorded in respect of each of the three offences.

Key Takeaways

  • The District Court confirmed that the principle from R v Ranse, that random attacks on citizens going about their lawful business are serious breaches of the peace, applies equally to assaults on public transport as it does in other public settings.
  • A weapon present at the scene does not automatically aggravate an offence if it played no operative role in the offending; the court gave no additional weight to the knife in this case.
  • Where an offender is not formally charged on the basis of acting in company, that element will not be treated as an aggravating factor even if the surrounding facts suggest a companion was involved.
  • A guilty plea entered five days before the scheduled trial date attracted only a 5% discount for utility, reflecting the limited practical benefit to the justice system from such a late plea.
  • When structuring an aggregate sentence alongside an existing custodial term, the sentencing court may backdate the commencement date to give partial credit for time already served under a prior non-parole period, avoiding disproportionate cumulation.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61, 95(1), 117, 166
- Crime (Sentencing Procedure) Act 1999 (NSW), s 5

Cases:
- Bugmy v The Queen (2013) 249 CLR 571
- Kennedy v R [2010] NSWCCA 260
- R v Fernando (1992) 76 A Crim R 58
- R v Ibrahimi [2005] NSWCCA 153
- R v Ranse NSWCCA (unrep, 8 August 1994)