Citation: R v Faraj [2020] NSWDC 171
Court: District Court of New South Wales
Date: 8 May 2020
Judge: Colefax SC DCJ
Background
The offender was 18 years old at the time of the offending. He was one of a group of eight males who approached a 28-year-old man with a cognitive impairment at a park near Liverpool Westfield shopping centre on the evening of 23 December 2018.
Over the course of approximately two hours, the group intimidated, threatened, and physically assaulted the victim, stealing his iPod and $560 in cash. The offender did not personally take property or strike the victim, but he chased the victim when he tried to flee, drove the vehicle into which the victim was forced, and was present throughout the ordeal. The victim was ultimately driven to his own home before police attended and arrested the offender and three others.
The offender was charged with one count of robbery in company under s 97(1) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 20 years imprisonment. He pleaded guilty and cooperated with authorities under s 23 of the relevant legislation, attracting sentencing discounts. The sentence hearing was delayed several times before concluding on 8 April 2020, with judgment delivered on 8 May 2020.
Legal Issues
- How should the objective seriousness of the offending be assessed relative to the range for robbery in company?
- What aggravating features applied, and what weight should they carry?
- What subjective factors were relevant, including the offender's age, background, and expressed remorse?
- Was the expressed remorse genuine, and to what extent had the offender minimised his role?
- Whether an Intensive Correction Order (ICO) was an appropriate sentencing disposition, having regard to community safety as the paramount consideration.
Decision
His Honour assessed the offending as falling just below the mid-range of objective seriousness for an offence of its kind. The offending was aggravated by two specific factors: the victim's vulnerability arising from his cognitive disability, and the use of actual physical violence during the course of the robbery. The attack was sustained over several hours and involved threats of serious harm, including a threat to "chop his head off" if the victim reported the offending to police.
Colefax SC DCJ found that the offender was a willing participant, notwithstanding that he did not personally steal property or strike the victim. His pursuit of the victim when he tried to escape, and his role as driver of the vehicle into which the victim was forced, established active participation. The court was satisfied beyond reasonable doubt that the gloss the offender placed on his involvement did not reflect the true nature of his conduct.
On subjective matters, the court accepted that the offender's age (just turned 18), his status as a first offender, his refugee background, and his post-traumatic stress and mild depressive symptoms were all relevant mitigating factors. However, the court discounted the weight given to expressed remorse. The offender had omitted his role in chasing the victim when speaking to the psychologist and the author of the sentencing assessment report, which was inconsistent with genuine remorse and reflected an ongoing tendency to minimise involvement.
The court ultimately imposed a term of 1 year 9 months imprisonment, reduced from a starting point of 3 years 6 months by discounts for the guilty plea and future assistance under s 23. With some hesitation, and noting a Crown concession, the court accepted that community safety would be better served by an Intensive Correction Order (ICO) than by full-time custody. The court expressed strong concern about a proposed suspension of supervision under the ICO, but acknowledged it lacked the power to mandate that supervision occur.
Orders Made
- Sentence of 1 year 9 months imprisonment imposed, to be served by way of an Intensive Correction Order (ICO) commencing 8 May 2020.
- Mandatory ICO conditions: no commission of any offence; submission to supervision by a Community Corrections officer.
- Additional conditions imposed:
- 300 hours of community service.
- Continued attendance upon the offender's General Practitioner and recommended psychologist, with compliance with all treatment and advice for as long as deemed necessary.
- Complete abstinence from illicit drugs and any lawful drugs not prescribed by a medical practitioner.
- The offender directed to report to Mt Druitt Community Corrections before 4pm on Monday 11 May 2020, in the first instance by telephone.
Key Takeaways
- Active participation in a group robbery does not require personal commission of the taking or physical assault: presence combined with pursuit of a fleeing victim and driving a vehicle used to detain that victim was sufficient to establish willing participation.
- Aggravating features under the sentencing framework for robbery in company include the victim's vulnerability arising from disability and the use of actual violence, even where neither feature was the dominant characteristic of the offending.
- Expressions of remorse carry reduced weight where the offender has omitted or downplayed significant aspects of their involvement when speaking to psychological and sentencing assessment report authors.
- The District Court confirmed that community safety is the paramount consideration when assessing whether an ICO is appropriate, and that concessions by the Crown form part of, but do not determine, that assessment.
- Under s 97(1) of the Crimes Act 1900 (NSW), there is no standard non-parole period for robbery in company; the guideline judgment in R v Henry (1999) 46 NSWLR 346 remains the relevant reference point for calibrating objective seriousness.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 97(1) (robbery in company; maximum 20 years imprisonment)
Cases
- R v Henry (1999) 46 NSWLR 346 (guideline judgment for robbery in company offences)