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District Court 16 December 2020

R v Nasrallah

[2020] NSWDC 888

Assault & violenceTheft & propertyFirearms & weapons
CRIME ROBBERY ARMED WITH OFFENSIVE WEAPON DESTROY OR DAMAGE PROPERTY SENTENCING RELEVANT FACTORS ON SENTENCE FIRST OFFENDER YOUNG OFFENDER

Citation: R v Nasrallah [2020] NSWDC 888
Court: District Court of New South Wales
Date: 16 December 2020
Judge: Haesler SC DCJ

Background

In February 2020, a young woman and a co-offender carried out an armed robbery at a service station in Windang, NSW. The co-offender grabbed the console operator and held a knife to his throat while the offender entered the serving area wearing a disguise and wielding a crowbar, smashing it against shelves, the counter, and a door. The pair took cash and cigarettes before fleeing in the offender's vehicle. Both were arrested shortly afterward.

The offender, born in 1999, had no prior criminal history. She pleaded guilty at the earliest available opportunity. She claimed no memory of the event, attributing this to misuse of prescription drugs, though the court noted the CCTV footage clearly showed her actions were willed regardless of any effect on her memory.

The offender appeared for sentencing on one count of robbery armed with an offensive weapon under s 97(1) of the Crimes Act 1900 (NSW), carrying a maximum penalty of 20 years' imprisonment, and one count of intentionally damaging property dealt with by way of a certificate from the Local Court under s 166 of the Criminal Procedure Act 1986.

  • Whether the objective seriousness of the armed robbery offence and the R v Henry guideline judgment precluded a non-full-time custodial sentence, including an Intensive Correction Order (ICO)
  • How to weigh the offender's strong subjective case, including youth, first-offender status, early guilty plea, genuine remorse, and rehabilitation progress, against the demands of general deterrence and consistency in sentencing armed robbers
  • Whether special circumstances justified a non-parole period substantially below the statutory norm of one-third of the total sentence
  • How to treat the property damage offence, committed in the course of the principal offence, for the purposes of concurrence

Decision

Haesler SC DCJ acknowledged that a powerful case had been made for a sentence that would allow the offender to serve her time in the community. However, his Honour concluded that the objective seriousness of armed robbery, a crime committed against a person in a public place using two weapons and involving a real threat of violence, meant the purposes of sentencing, particularly general deterrence and community protection, could not be adequately met by an ICO.

The court addressed the R v Henry guideline judgment at length. It reaffirmed that the guideline is not a rigid formula or "tram line" but carries statutory force under s 42A of the Crimes (Sentencing Procedure) Act 1999 and must be taken into account. Sentences at the low end of the range following a late plea in an ordinary armed robbery were noted to be around four years; this was regarded as an ordinary case in that sense.

The court identified a substantial finding of special circumstances to justify reducing the non-parole period to slightly below 50 per cent of the total sentence, rather than the standard one-third. This reflected the offender's demonstrated rehabilitation progress, her youth, and the fact she was entering custody for the first time. The guilty plea discount of 25 per cent was applied to the notional sentence of three years and nine months for the principal offence, producing a sentence of two years and nine months.

The property damage offence was treated as a concurrent matter, the court finding it occurred as part of the same intimidatory conduct constituting the principal offence. The three-month fixed term for that offence ran concurrently with the principal sentence.

Orders Made

  • The offender was convicted on both counts.
  • Intentionally damage property: fixed term of 3 months' imprisonment, commencing 16 December 2020, concurrent with the principal sentence.
  • Robbery armed with an offensive weapon (s 97(1)): total sentence of 2 years and 9 months' imprisonment.
  • Non-parole period: 1 year and 4 months, commencing 16 December 2020, expiring 15 April 2022.
  • Parole period: 1 year and 5 months.
  • Total sentence expiring 15 September 2023.
  • The offender to be released to parole on 15 April 2022.

Key Takeaways

  • The District Court confirmed that the R v Henry guideline for armed robbery retains statutory force and must be taken into account at sentence, even though it does not operate as a prescriptive starting point from which deductions are mechanically made.

  • A strong subjective case, encompassing youth, first-offender status, an early guilty plea, genuine remorse, and active engagement with rehabilitation programs, does not automatically displace the need for full-time custody in an armed robbery involving weapons and a real threat of violence.

  • An Intensive Correction Order was found to be inconsistent with the objective seriousness of the offence, even where the aggregate sentence might otherwise have been within the eligible range, because the purposes of sentencing, particularly general and specific deterrence, demanded a period of actual imprisonment.

  • Drug intoxication at the time of the offence was treated as an aggravating factor rather than a mitigating one, as it increased the potential risk to the victim and others present.

  • Where a property damage offence is committed as part of the same intimidatory conduct that constitutes the principal offence, concurrent sentencing is appropriate.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(1) (robbery armed with an offensive weapon)
- Criminal Procedure Act 1986 (NSW), s 166
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25D, 42A, 66

Cases
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Wany v DPP [2020] NSWCA 318
- Bugmy v R (1990) 169 CLR 525; [1990] HCA 18
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Legge v R [2007] NSWCCA 244
- Kristensen v R [2018] NSWCCA 189
- Ruano v R [2011] NSWCCA 149
- Rios v R [2012] NSWCCA 8
- Clarke-Jeffries v R [2019] NSWCCA 56
- IS v R [2017] NSWCCA 116
- KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51
- Lau v R [2010] NSWCCA 43
- R v Drollett [2002] NSWCCA 13
- R v Mastronardi (2000) 111 A Crim R 206
- R v Windle [2012] NSWCCA 222
- Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21
- R v Herring (1956) 73 WN (NSW) 203