Citation: R v Zreika [2019] NSWDC 893
Court: District Court of New South Wales
Date: 26 November 2019
Judge: Judge W Hunt
Background
The offender, a 40-year-old man, appeared for sentencing on three offences arising from a single incident at a regional New South Wales hotel on 6 March 2018. He had travelled from Queensland, borrowed a vehicle, and attended the Tattersall's Hotel in Casino intending to recover an alleged debt of $30,000 from the licensee.
During the incident, the offender confronted two tenants and regular patrons of the hotel while concealing a pruning saw wrapped in a white towel, presenting it as though it were a gun and threatening to shoot the victims. He obtained a mobile phone and attempted to rob the licensee directly before being physically restrained and fleeing. A DNA match linking him to clothing left at the scene led to his arrest.
The offender had pleaded guilty in the Local Court to two counts of robbery while armed with an offensive weapon and one count of attempted robbery while armed with an offensive weapon, each carrying a maximum penalty of 20 years imprisonment under s 97(1) of the Crimes Act 1900. He had been in custody since 4 October 2018, though he was already serving a fixed-term sentence for separate firearms matters until 6 May 2020.
Legal Issues
- What was the appropriate objective seriousness of each of the three offences?
- What weight should be given to the offender's criminal history, conditional liberty at the time of offending, drug addiction, and personal circumstances?
- How should the sentences be structured given the offender was already serving a separate fixed-term sentence?
- What discount applied for the early guilty plea, and whether special circumstances existed to justify a reduced non-parole period?
Decision
Judge Hunt assessed the two robbery counts (sequences 1 and 2) as below mid-range but not at the low range of objective seriousness. The items stolen were of little or no value, the threats of shooting could not have been carried out (the weapon was a pruning saw), and the offending appeared spontaneous and unplanned. Some actual violence was visited on one victim when he attempted to physically restrain the offender, which the court took into account.
The attempted robbery (sequence 3) was treated more seriously, assessed at mid-range to slightly above mid-range. The offender had travelled specifically to Casino for the purpose of recovering the alleged debt, spent approximately half an hour in the vicinity before acting, and the confrontation occurred within the licensee's private premises. The court drew an inference that the offender was acting to collect money for another person in expectation of some reward, though no evidence of the reward's value was before the court.
In mitigation, the court accepted that the offender had committed the offences while under the influence of methylamphetamine, following a history of cocaine and heroin addiction linked to the breakdown of his first marriage. His criminal record did not reach the threshold under Veen v R (No 2) that would require treating it as a factor of aggravation, but it precluded leniency. The court identified a risk of institutionalisation and found special circumstances, justifying a longer parole period than standard to assist reintegration. A 25% utilitarian discount applied to all counts by reason of the early guilty pleas.
The court imposed an aggregate sentence rather than individual concurrent or cumulative terms. The sentence was deliberately accumulated on the existing fixed-term sentence, commencing on 8 May 2019 rather than being backdated to the date of first custody, producing a combined effective total of seven years with a five-year non-parole period across all matters.
Orders Made
- Aggregate head sentence of six years imprisonment, commencing 8 May 2019 and expiring 7 May 2025.
- Non-parole period of four years (reflecting a finding of special circumstances), with an earliest release date of 7 May 2023.
- Indicative sentences: four years for each of sequences 1 and 2; five years and three months for sequence 3 (after 25% guilty plea discount applied in each case).
Key Takeaways
- The District Court distinguished between the spontaneous armed robberies (below mid-range objective seriousness) and the attempted robbery of the licensee (mid to slightly above mid-range), based on the degree of planning evident in travelling to the location with a specific financial target in mind.
- Presenting an object as a firearm when it is not one does not automatically elevate objective seriousness to the higher range, but the court did treat the victims' genuine belief that a real gun was present as a relevant consideration in assessing the nature of the threat.
- Being on conditional liberty, including a suspended sentence and probation from another jurisdiction, constitutes an aggravating factor in New South Wales sentencing.
- A 25% utilitarian discount applied automatically by statute where an offender pleads guilty in the Local Court, and the court noted this discount was of greater proportionate value here than in the Henry guideline judgment because the offender was not young and the circumstances were otherwise more serious.
- The structure of an aggregate sentence may be accumulated on an existing fixed-term sentence, with commencement deferred to create an appropriate combined effective sentence across all outstanding matters.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 97(1) (robbery armed with offensive weapon)
- Criminal Procedure Act 1986 (NSW), s 166
Cases:
- R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R (guideline judgment on armed robbery sentencing)
- Veen v R (No 2) (1988) 164 CLR 465 (prior criminal history and proportionality)
- Karacic v R [2019] NSWCCA 195 (sentencing analogue for armed robbery)