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District Court 12 May 2020

R v Zreika

[2020] NSWDC 190

Fraud & dishonestyTheft & property
CRIME SENTENCING OFFENDER SENTENCED IN LOCAL COURT

Citation: R v Zreika [2020] NSWDC 190
Court: District Court of New South Wales
Date: 12 May 2020
Judge(s): Wilson SC DCJ

Background

The offender was sentenced for a single charge of dishonestly destroying or damaging property by fire for gain, contrary to s 197(1)(b) of the Crimes Act 1900 NSW. The offence arose from a deliberate arson at a formal wear boutique in Guildford on 2 November 2018, carried out in exchange for an agreed payment of between $5,000 and $10,000.

The offender and his younger brother (the co-offender) were engaged by the business owner, Ms Alameddine, to set fire to her store. The owner had been complaining about financial difficulties and sought to make an insurance claim. The two brothers purchased kerosene, attended the premises, and started a fire in a storage area of the shop. A third party, the brothers' then-associate, unknowingly drove them to and from the scene.

The co-offender's matter was dealt with in the Local Court, where he received a two-year Intensive Corrections Order. The offender's matter came before the District Court, where the sentences had to be considered alongside a pre-existing custodial sentence for unrelated dangerous driving and assault offences.

  • What was the appropriate sentence for the arson offence, having regard to the objective seriousness of the conduct and the offender's subjective circumstances?
  • Did the parity principle apply between the offender and his co-offender brother, who was sentenced more leniently in the Local Court?
  • How should questions of concurrency, accumulation, and totality be resolved given the offender was already serving a substantial sentence for unrelated matters?

Decision

On the parity issue, the court found that the parity principle was enlivened but did not require equal treatment. The co-offender was younger, had a different criminal history, and was sentenced in the Local Court which has limited sentencing jurisdiction. The court accepted that some disparity was justifiable, but took the co-offender's relatively light sentence into account when calibrating the overall result for the offender.

On objective seriousness, the court treated the offence as falling in the mid-range. The fire was deliberate, planned, and motivated by financial gain. However, the fire was extinguished quickly and damage was contained. The offender's role was as a principal, whereas the business owner had conceived and organised the scheme.

On subjective matters, the court considered the offender's background, including a difficult upbringing, mental health and psychological issues identified in a psychologist's report, and the absence of any prospects of early rehabilitation given his existing custodial sentence. The court determined a longer period on parole would better support rehabilitation.

On totality, the court held the new sentence should commence six months before the expiry of the non-parole period on the existing sentence. This ensured the sentences were neither wholly concurrent nor so accumulated as to produce a disproportionate total. The court also took into account one month the offender spent in custody solely attributable to the subject offence.

Orders Made

  • The offender was convicted of dishonestly destroying or damaging property by means of fire contrary to s 197(1)(b) of the Crimes Act 1900 NSW.
  • The existing Community Corrections Order for a prior destroy/damage property offence was called up and revoked.
  • An aggregate sentence of 27 months was imposed, with an aggregate non-parole period of 18 months.
  • The sentence commences 4 November 2022, with the non-parole period expiring 3 May 2024 and the balance of sentence expiring 3 February 2025.
  • The offender's earliest release date was set at 3 May 2024.
  • A copy of the psychologist's report was directed to accompany the Warrant of Commitment, to be drawn to the attention of Justice Health.

Key Takeaways

  • The parity principle, which requires that co-offenders not receive sentences so different as to create a justified sense of grievance, applies even where one co-offender is sentenced in a lower court with more limited jurisdiction. However, differences in age, criminal history, and the sentencing court's jurisdiction can justify disparity.
  • A conviction under s 197(1)(b) of the Crimes Act 1900 NSW carries a maximum of 14 years imprisonment, with no standard non-parole period. The maximum informs the sentencing range by reference to the objective seriousness of the particular conduct.
  • Where an offender is already serving a substantial sentence, the totality principle requires the new sentence to be structured so that the combined effect is not crushing or disproportionate to the overall criminality across all offences.
  • Partial concurrency, rather than full accumulation or full concurrency, can appropriately reflect both the distinct nature of separate offending and the need to avoid an excessive total sentence.
  • Psychologist reports identifying mental health needs can influence the balance between non-parole period and balance of term, with courts able to extend parole periods to facilitate rehabilitation and reduce reoffending risk.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 NSW, s 197(1)(b) (dishonestly for gain destroy or damage property by fire)
- Crimes (Sentencing Procedure) Act 1999 NSW, s 3A (purposes of sentencing)

Cases:
- No cases were cited in the judgment.