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District Court 9 April 2020

R v Forsythe

[2020] NSWDC 99

Assault & violenceTheft & property
MULTIPLE OFFENCES OF AGGRAVATED ROBBERY AGGREGATE SENTENCE

Citation: R v Forsythe [2020] NSWDC 99
Court: District Court of New South Wales
Date: 9 April 2020
Judge: Mahony SC DCJ

Background

The offender was sentenced for two counts of aggravated robbery under s 95(1) of the Crimes Act 1900, both committed on 13 April 2019 in Auburn. The offences arose out of a dispute over a motorcycle sale arranged between a co-accused and one of the victims. The offender was part of a group that accompanied the seller to a residential address to complete the transaction.

When the prospective buyer began to have second thoughts about the purchase, the situation turned violent. The offender physically pushed and robbed one victim of his mobile phone, then punched a second victim twice, placed a hand around his neck, and took his iPhone X. The offender also asked to be sentenced on three Form 1 matters: an aggravated entry into a dwelling, and two charges of failing to disclose the identity of a vehicle driver.

Two days after the robbery offences, the offender and associates returned to the Auburn premises looking for the motorcycle buyer, entering the residence without permission. Police arrived and arrested the offender. He had been in continuous custody since 15 April 2019.

  • What aggregate sentence was appropriate for two offences of aggravated robbery involving separate victims but arising from the same course of conduct?
  • What utilitarian discount should apply to reflect the offender's guilty pleas?
  • Whether special circumstances existed justifying a departure from the standard non-parole period ratio?
  • How should the Form 1 offences affect the sentencing exercise?

Decision

His Honour imposed a 25% utilitarian discount on sentence, reflecting the offender's guilty pleas. The offender was 39 years old with a limited criminal history, the most recent entries being traffic and drug matters. The Sentencing Assessment Report noted an escalation in offending linked to methamphetamine use and adverse peer associations. The offender expressed some remorse but also minimised his conduct, including suggesting that one victim bore some responsibility for the incident.

His Honour identified the relevant principles governing accumulation under the totality principle: where offences are part of a single criminal episode with common factors, the sentence for one offence will often reflect the criminality of both. However, because there were two separate victims and two distinct acts of robbery, some accumulation was required.

Indicative sentences were set at 18 months for the robbery of the first victim (Sequence 5) and 2 years and 6 months for the robbery of the second victim (Sequence 6, which also carried the Form 1 offences). An aggregate sentence was then imposed under s 53A of the Crimes (Sentencing Procedure) Act 1999. Special circumstances were found to exist, given that this was the offender's first custodial sentence and that some accumulation was necessary, justifying a longer than standard parole period.

Orders Made

  • Convicted of aggravated robbery of the first victim (Sequence 5) on 13 April 2019 at Auburn, contrary to s 95(1) of the Crimes Act 1900.
  • Convicted of aggravated robbery of the second victim (Sequence 6) on 13 April 2019 at Auburn, contrary to s 95(1) of the Crimes Act 1900.
  • Aggregate sentence of 3 years imprisonment, commencing 15 April 2019.
  • Non-parole period of 2 years, commencing 15 April 2019 and terminating 14 April 2021.
  • Court certified that the three Form 1 offences were taken into account when sentencing on Sequence 6.

Key Takeaways

  • The District Court confirmed that two offences sharing a common factual origin do not automatically attract concurrent sentences: where there are distinct victims and distinct criminal acts, some accumulation is required even within a single episode of criminality.
  • Under s 53A of the Crimes (Sentencing Procedure) Act 1999, an aggregate sentence may be imposed across multiple offences, with indicative sentences set for each charge to inform the overall term.
  • A first custodial sentence can constitute a special circumstance justifying an extended parole period relative to the non-parole period, particularly where accumulation has itself increased the head sentence.
  • Partial remorse, combined with minimisation of conduct and displaced blame toward a victim, was noted as a factor limiting the weight given to the offender's expressed contrition.
  • The 25% utilitarian discount applied here reflected the practical value of guilty pleas in conserving court resources, consistent with the approach in cases such as Cahyadi v R [2007] NSWCCA 1.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 95(1), 111(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 16(2)

Cases
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
- Hejazi v R (2009) 217 A Crim R 151
- R v Atonio (2005) 154 A Crim R 183
- R v Henry (1999) 46 NSWLR 346