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District Court 14 December 2020

R v Al-Turfi

[2020] NSWDC 912

Fraud & dishonestyTheft & property
CRIME SENTENCE ROBBERY IN COMPANY

Citation: R v Al-Turfi [2020] NSWDC 912
Court: District Court of New South Wales
Date: 14 December 2020
Judge: Bourke SC DCJ

Background

The offender was before the District Court for sentencing on two offences. The first was robbery in company, arising from an incident at Warwick Farm Railway Station on 15 December 2018, in which a heavily intoxicated victim was robbed of his wallet, phone, keys and money by the offender and two associates. The second was dishonestly obtaining a financial advantage by deception, committed shortly after the robbery when the offender used the victim's stolen bank card to purchase items at a 7-Eleven store.

The offender had been found guilty of the robbery by a jury on 16 September 2020, having contested the charge at trial. He pleaded guilty to the deception offence at arraignment, attracting a 5% discount on sentence for that count.

At the sentencing hearing, the offender disputed aspects of the factual basis for the robbery. He contended that the victim had initiated contact by seeking to buy drugs, and that any property taken was not part of a planned robbery. The Crown disputed this account.

  • Whether the offender's disputed version of facts (that the victim approached the group seeking drugs) should be accepted for sentencing purposes
  • What weight to give the offender's guilty plea and other mitigating factors in determining the appropriate sentence
  • Whether the offences warranted full-time custody or could be served by way of Intensive Correction Order (ICO)

Decision

His Honour rejected the offender's factual account without hesitation. The CCTV footage did not support a finding that the victim was seeking drugs. Instead, it showed a visibly intoxicated man who had inadvertently ended up at an unfamiliar station and was trying to find his way home. The only direct evidence of any drug-related conversation came from the offender himself, whose evidence his Honour found to have "little or no credibility at all." The facts adopted for sentencing were those advanced by the Crown.

On the robbery itself, the court was satisfied that the offender grabbed the victim's arm, demanded money using threatening words, and participated in a group assault that left the victim on the ground before his pockets were searched and his property taken. The deception offence followed shortly after, when the offender used the victim's bank card at a nearby store.

In arriving at sentence, his Honour had regard to the guideposts of the maximum penalties (20 years for robbery in company, 10 years for the deception offence), the principles from R v Henry and Ors concerning robbery in company, and relevant considerations of general and specific deterrence, rehabilitation, and the offender's personal circumstances. The court noted the offender's age, background, and prospects for rehabilitation as relevant factors, including principles drawn from Bugmy v R concerning the relevance of social disadvantage to the sentencing exercise.

His Honour ultimately concluded, after considerable reflection, that an Intensive Correction Order (ICO) was appropriate. An ICO is a sentence served in the community under strict conditions, rather than in full-time custody. The court imposed a term of three years' imprisonment to be served by way of ICO, with several additional conditions attached.

Orders Made

  • A sentence of three years' imprisonment imposed, to be served by way of Intensive Correction Order
  • Standard ICO conditions: no further offending; supervision by a Community Corrections officer
  • 400 hours of community service
  • No consumption of alcohol or illegal drugs; submission to random urinalysis if required
  • Participation in drug, alcohol, or other counselling as directed by Community Corrections
  • Curfew: not to be absent from place of residence between 11pm and 5am, unless accompanied by a parent or older brother
  • A pre-existing section 9 bond called up and revoked; no further action taken on that bond
  • Offender directed to report to Community Corrections at Fairfield by telephone within 48 hours

Key Takeaways

  • The District Court declined to accept a disputed factual basis for sentencing where the only direct evidence supporting that version came from a witness (the offender himself) whose credibility had been squarely rejected by both the jury and the sentencing judge.

  • Where CCTV footage and other objective evidence contradict an offender's account, a sentencing court may reject the alternative factual narrative without further inquiry, adopting the Crown's version if it is consistent with all available evidence.

  • An Intensive Correction Order remains available as a sentencing option even for serious indictable offences such as robbery in company, provided the court is satisfied that the offender's prospects of rehabilitation make it the appropriate disposition, consistent with the principles in Waney v DPP [2020] NSWCA 318.

  • Bugmy v R confirms that social disadvantage and personal background remain relevant considerations in the sentencing exercise, even for serious violent offending.

  • A guilty plea discount (here, 5%) applies only to the count to which the plea was entered; no discount applies to a count on which the offender was found guilty after a contested trial.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- R v Henry and Ors [1999] 46 NSWLR 346
- Owens v The Queen [2017] NSWCCA 16
- R v Millwood [2012] NSWCCA 2
- Bugmy v R [2013] HCA 37
- BP v R [2010] NSWCCA 159
- R v Zamagias [2002] NSWCCA 17
- Waney v DPP [2020] NSWCA 318