Citation: R v Peyroux-Dean [2020] NSWDC 84
Court: District Court of New South Wales
Date: 13 February 2020
Judge: M L Williams SC DCJ
Background
The offender, a 29-year-old man, was sentenced after pleading guilty to aggravated robbery inflicting grievous bodily harm under s 96 of the Crimes Act 1900. The offence carries a maximum penalty of 25 years imprisonment. His guilty plea was entered at a relatively late stage, attracting a 10% utilitarian discount.
The offence arose from a planned robbery in Queanbeyan on 8 August 2018. The offender and his co-offender, Kirsty Whitney, arranged a meeting with an acquaintance under the pretence of a drug transaction. While Whitney lured the victim to a secluded cul-de-sac, the offender waited and launched a sustained physical assault, punching the victim repeatedly in the face, threatening to stab him, and stealing his wallet, phone, bicycle, and backpack. The victim lost consciousness during the assault.
The victim suffered severe injuries including shattered and fractured facial bones and a fractured jaw. He required surgery involving the insertion of eight steel plates, and was unable to eat solid food for an extended period. Whitney had previously been sentenced by a different judge, after an early guilty plea and cooperation with authorities, to two years and four months imprisonment with an 18-month non-parole period for the lesser charge of robbery in company under s 97(1).
Legal Issues
- What sentence was appropriate for the offender, having regard to his role in the joint criminal enterprise, the seriousness of the offence, and the disparity with the co-offender's sentence?
- What weight should be given to the offender's subjective circumstances, including his drug addiction, criminal history, and rehabilitation prospects?
- Whether special circumstances existed justifying a departure from the standard ratio between the non-parole period and the total term of imprisonment.
- How to treat a Sentence Assessment Report that was neither adopted nor tested by the offender's counsel.
Decision
The court identified this as a very serious offence of aggravated robbery that fell above the mid-range of objective seriousness. The victim sustained lasting injuries as a result of repeated and sustained physical violence. The offender had threatened to stab the victim during the assault, adding an element of fear beyond the physical harm inflicted.
Williams SC DCJ acknowledged that co-offenders in a joint criminal enterprise must each be sentenced by reference to their individual role and culpability. The co-offender Whitney was sentenced for robbery in company, a less serious charge carrying a lower maximum penalty, and was not sentenced for the violence or resulting injuries. The offender faced a charge attracting a substantially greater maximum term, had played the primary physical role in the assault, and bore greater culpability. These distinctions justified a significantly heavier sentence than that imposed on Whitney.
The offender's subjective case was limited. No evidence was led by defence counsel, and the Sentence Assessment Report was treated with caution because it had not been adopted or tested, consistent with the principles in R v Qutami and Imbornone v R. The offender had a significant criminal history including prior convictions for armed robbery and robbery in company, and previous periods of custody had not deterred reoffending. General and specific deterrence, as well as denunciation, were identified as important sentencing considerations. The offender's drug addiction and stated desire to rehabilitate were noted, but given the lack of evidence of concrete steps toward rehabilitation and his medium-to-high risk of reoffending, these matters carried limited mitigating weight.
Special circumstances were found, providing a basis to extend the parole period beyond what the standard non-parole ratio would produce. The court accepted that the offender would require significant supervision, direction, and counselling upon release to support any genuine prospect of rehabilitation and reintegration.
Orders Made
- The offender was convicted of the offence.
- A term of imprisonment of 6 years and 3 months was imposed, commencing 27 September 2018.
- A non-parole period of 3 years and 9 months was imposed, expiring 26 June 2022.
- Special circumstances were found.
Key Takeaways
- In a joint criminal enterprise, co-offenders must be sentenced individually by reference to their respective roles and culpability, even where the objective facts of the enterprise overlap substantially.
- Disparity between co-offender sentences is explicable where the charges differ in maximum penalty, the degree of involvement in the violence differs, and the timing and extent of cooperation with authorities differ.
- A Sentence Assessment Report that is neither adopted nor tested by the offender's counsel is treated with significant caution, and the subjective case is correspondingly limited, as confirmed by reference to R v Qutami and Imbornone v R.
- The District Court found special circumstances where the offender's long-standing drug addiction, custodial history, and medium-to-high reoffending risk indicated a need for extended supervision and support during the parole period.
- Where an offender has a prior history of similar offending, limited evidence of steps toward rehabilitation, and a medium-to-high risk of reoffending, general and specific deterrence and denunciation carry substantial weight in the sentencing exercise.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 96, 97(1)
- Crime (Sentencing Procedure) Act 1999 (NSW), ss 3A, 23
Cases:
- R v Qutami (2001) 127 A Crim R 369
- Imbornone v R [2017] NSWCCA 144