Citation: R v Pallister [2020] NSWDC 183
Court: District Court of New South Wales
Date: 8 April 2020
Judge: P Taylor SC DCJ
Background
The offender, a 31-year-old man with an extensive criminal history, pleaded guilty to two offences committed on 5 October 2018 in Merrylands, just one week after being released on parole. The first offence was assault with intent to rob whilst armed with an offensive weapon causing wounding, carrying a maximum penalty of 25 years and a standard non-parole period of 7 years. The second was stealing a motor vehicle under s 154F of the Crimes Act 1900, carrying a maximum of 10 years.
In the first incident, the offender approached a stationary vehicle at a roundabout, demanded keys and a wallet, and produced a serrated kitchen knife approximately 40 centimetres long. A struggle ensued during which the victim sustained lacerations to the chest, ear, and hand. The offender then falsely claimed to have a gun before fleeing. About an hour later, the offender obtained the keys to a Holden Calais on the pretext of a test drive and drove it away without returning it.
The offender's parole was revoked upon his arrest that day. He remained in custody serving the balance of his prior sentences until 27 June 2019, then continued in custody referable to the present charges. Two Form 1 offences (to be taken into account on sentence without separate conviction) were also before the Court: damaging a police vehicle while in custody, and driving whilst disqualified.
Legal Issues
- What was the appropriate aggregate sentence for two serious offences committed shortly after release on parole, having regard to the offender's criminal history, subjective circumstances, and guilty plea?
- How should the Form 1 offences affect the assessment of objective seriousness?
- Whether special circumstances existed justifying a non-parole period shorter than the statutory default (one-third of the head sentence), given the offender's mental health and drug dependency.
- How the 25% sentencing discount for early guilty plea should be applied, and whether assistance to police at the time of arrest warranted further consideration.
Decision
The District Court placed the armed robbery with wounding below the midrange of objective seriousness. In reaching that conclusion, the Court accepted that the wounding was more likely reckless than intentional, noting it arose from a struggle rather than a deliberate act. However, the Court regarded the additional threat of a gun, the use of a large serrated knife, and the false exculpatory account given to police as aggravating features. The Form 1 damage to the police vehicle added little to the overall seriousness of the robbery offence.
The car stealing was assessed at the lower end of criminality for that offence type. The Court noted the absence of real planning, the short distance the vehicle travelled, and its prompt recovery. The disqualified-driving Form 1 offence modestly increased the seriousness of the car stealing.
The offender received a 25% reduction for his early guilty plea and assistance to police at arrest, though the Court noted this was tempered by the false account he gave about the robbery. His significant criminal history, which included prior armed robbery, knife offences, and repeated vehicle-related offending, weighed heavily against him. The Court acknowledged his difficult childhood, developmental trauma, mental health issues, and drug dependency as relevant subjective factors, while noting he had spent almost all of his adult life in custody.
Special circumstances were found to exist by reason of the offender's mental health and drug issues. The Court considered rehabilitation was best served by a greater-than-ordinary proportion of the sentence being served on parole, justifying a non-parole period of three years out of a five-year head sentence rather than the standard ratio.
Orders Made
- Aggregate sentence of five years' imprisonment, commencing 27 December 2018 and expiring 26 December 2023.
- Indicative sentence for assault with intent to rob causing wounding: four years and six months.
- Indicative sentence for stealing a motor vehicle: twelve months.
- Non-parole period of three years (special circumstances found), with parole eligibility from 26 December 2021.
- Form 1 offences (damage to property; driving whilst disqualified) taken into account on the relevant head sentences.
Key Takeaways
- The District Court confirmed that being armed with a weapon is generally regarded as more serious than offending in company, following R v Huynh [2005] NSWCCA 220, and that an additional threat involving a firearm further elevates objective seriousness even where no gun was present.
- A 25% reduction for early guilty plea may be reduced in its practical weight where the offender provides a false account of the principal offence to police, as occurred here.
- Special circumstances justifying a reduced non-parole period can be established by a combination of mental health conditions and drug dependency, particularly where a greater period on supervised parole is seen as the most realistic avenue for rehabilitation.
- Under the Henry guidelines framework, the Court noted those guidelines carry reduced force following increases to the maximum penalty for the relevant offences, and must be applied alongside the specific aggravating and mitigating features of the case before the court.
- Offending committed within days of parole release, combined with a pattern of similar prior offences involving weapons and vehicles, reinforced the sentencing purposes of community protection, deterrence, denunciation, and just punishment under s 3A of the Crimes (Sentencing Procedure) Act 1999.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 154F
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5
Cases
- R v Henry [2007] NSWCCA 90
- R v Huynh [2005] NSWCCA 220
- Regina v Smith [2001] NSWCCA 152
- R v PB [2008] NSWCCA 109
- Martin v R [2016] NSWCCA 273
- Hiron v R [2018] NSWCCA 10