Citation: [2019] NSWDC 890
Court: District Court of New South Wales
Date: 22 November 2019
Judge: Judge W Hunt
Background
Three offenders, referred to here by their roles as the principal assailant, the secondary assailant, and the third offender, each pleaded guilty in the Local Court to two offences arising from the same incident: especially aggravated detention (where actual bodily harm was caused and the offenders acted in company) and robbery in company. A disputed facts hearing preceded sentencing, and the court resolved almost all factual contentions in the offenders' favour, with one minor exception relating to the third offender.
The offences occurred on the morning of 30 March 2018 at a residential unit in Mortdale. The victim was present at the address by coincidence rather than by design. The offenders assaulted the victim, demanded his bank card and PIN, withdrew $380 from his account, and returned to the premises. All three offenders were on parole at the time of the offending and had been returned to custody following their arrest.
The third offender's conduct extended beyond the joint criminal enterprise. After the other two had left (or cannot be excluded as having left) the premises, he alone used a staple gun on the victim and poured boiling water from a jug onto the victim's groin area. The court treated these additional acts as aggravating circumstances personal to that offender only, noting they occurred outside the scope of the shared criminal enterprise.
Legal Issues
- How should the court assess the objective seriousness of each offender's conduct given the differing levels of individual participation?
- What utilitarian discount applied to each offender's guilty plea, particularly where a factual finding went against one offender at the disputed facts hearing?
- How should sentences be structured where offenders were on parole at the time of the new offending, including the appropriate commencement date and extent of accumulation on the balance of parole periods?
- Whether special circumstances existed to justify a variation from the standard ratio of non-parole period to head sentence?
- What weight should be given to aggravating factors (criminal history, breach of conditional liberty, gratuitous cruelty, offending in another person's home) and mitigating factors (guilty pleas, absence of planning, subjective circumstances)?
Decision
The court assessed the objective seriousness of the detention offence for the third offender as above the midrange, given his additional acts of stapling and burning the victim. For all other offending by all three offenders, objective seriousness was assessed as being around the midrange. The court treated the additional acts of the third offender as aggravating the detention count against him only, to avoid double-counting and to reflect that those acts fell outside the joint criminal enterprise.
Each offender received a 25% utilitarian discount. The court noted that although a factual finding went against the third offender, evidence of remorse he gave on oath supported maintaining the full discount. The Crown had conceded the full 25% discount for the other two offenders without qualification.
All three offenders were on parole when the offences were committed. Consistent with the approach in R v Callaghan, the court had a discretion as to whether to commence the new sentences concurrently with, or after, the balance of the parole periods. Rather than elevating the assessment of objective seriousness for the breach of conditional liberty, the court instead commenced each sentence one year into the balance of each offender's parole period. Each of the three offenders received an aggregate sentence, with a modest notional level of partial accumulation between the two counts.
Special circumstances were found for all three offenders, resulting in a non-parole period that represents a higher proportion of the head sentence than the statutory default, to allow for a longer period of supervised parole on release given the significance of supervision to rehabilitation in each case.
Orders Made
Third offender (Fajloun):
- Aggregate sentence of 6 years and 3 months, commencing 4 April 2019, expiring 3 July 2025
- Non-parole period of 4 years and 3 months; earliest release date 3 July 2023
- Special circumstances found
Principal assailant (Clark):
- Aggregate sentence of 5 years, commencing 1 April 2019, expiring 31 March 2024
- Non-parole period of 3 years and 6 months; earliest release date 30 September 2022
- Special circumstances found
Secondary assailant (Raffoul):
- Aggregate sentence of 4 years and 6 months, commencing 4 April 2019, expiring 3 October 2023
- Non-parole period of 3 years; earliest release date 3 April 2022
- Special circumstances found
Key Takeaways
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Where one offender's conduct during a joint criminal enterprise extends beyond the scope of that enterprise, the District Court confirmed that additional aggravating acts should be attributed to that offender alone and not visited upon co-offenders through their culpability assessment.
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A full 25% utilitarian discount remained available even where a disputed facts hearing produced a finding partly adverse to the offender, provided other factors, such as sworn evidence of remorse, supported that outcome.
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Under R v Callaghan and related authorities, a sentencing court retains a discretion to commence sentences for offending committed on parole at a point within the balance of the parole period rather than at the end of it, particularly where the breach of conditional liberty has not been used to separately elevate the objective seriousness assessment.
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Gratuitous cruelty, including acts of deliberate physical harm that go beyond the conduct necessary to commit the primary offence, operates as an aggravating factor under NSW sentencing law.
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The absence of pre-planning remains a mitigating consideration in sentencing for violent offences, even where the offending is otherwise objectively serious.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 86(3) (especially aggravated detention, maximum 25 years)
- Crimes Act 1900 (NSW), s 97(1) (robbery in company, maximum 20 years)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21(2)(d) (significant criminal history as aggravating factor)
Cases:
- R v Callaghan [2006] NSWCCA 58
- R v Henry (1999) 46 NSWLR 346; (1999) 106 ACrimR 149
- R v Speechley [2012] NSWCCA 130
- Veen v R (No 2) (1988) 164 CLR 465