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District Court 4 February 2021

R v Lasalo

[2021] NSWDC 109

Assault & violenceTheft & property

Citation: R v Lasalo [2021] NSWDC 109
Court: District Court of New South Wales
Date: 4 February 2021
Judge: Buscombe DCJ

Background

The offender pleaded guilty to conspiracy to commit robbery in company, contrary to common law. The alleged robbery target was a man believed by the conspirators to be holding cash and prohibited drugs at a Redfern apartment. The planned robbery involved a group of six co-offenders, with one acting as an inside contact who would open the apartment door.

Police became aware of the plot through the lawful interception of a co-offender's mobile phone during an unrelated investigation. Surveillance captured planning conversations across 4 and 5 December 2019 and ultimately allowed officers to intercept the offender and two co-offenders as they approached the target address on foot on the night of 5 December 2019. The robbery never took place.

The offender's specific role was to drive co-offenders to the vicinity of the target address. He declined to participate in a police record of interview.

  • What is the appropriate sentencing framework for a common law conspiracy charge, including which maximum penalty should serve as a yardstick?
  • At what point did this offender join the conspiracy, and what was his role within it?
  • What weight should be given to the offender's personal circumstances and prospects of rehabilitation?
  • Whether an Intensive Correction Order (ICO) was appropriate in lieu of full-time custody.

Decision

Buscombe DCJ confirmed that the penalty for a common law conspiracy is technically "at large," but that the maximum penalty for the substantive offence (robbery in company, carrying a 20-year maximum) should be used as a guidepost when sentencing. Her Honour assessed the objective seriousness of the offence by reference to the offender's role and the timing of his involvement.

The court found that, while the conspiracy was hatched by two other co-offenders on 4 December 2019, the first recorded reference to the offender was a phone call at 3.53pm on 5 December 2019. From the content of that call, the court drew the inference that the offender already had knowledge of the planned robbery before it took place, though the court could not find beyond reasonable doubt precisely how long before that call he had joined the conspiracy. His role was limited to driving co-offenders to the scene and was motivated by expected financial gain.

Her Honour considered the offender's personal circumstances, which included material reviewed following statements made to a psychologist. The court determined that an ICO was more likely to address the offender's risk of reoffending than a period of full-time custody, and that it remained consistent with the purposes of sentencing under the Crimes (Sentencing Procedure) Act, including the objectives set out in s 3A.

Orders Made

  • The offender was convicted of the conspiracy offence.
  • Sentenced to 18 months imprisonment, commencing 4 February 2021 and expiring 3 August 2022, to be served by way of an Intensive Correction Order.
  • Standard ICO conditions attached: the offender must not commit any offence; the offender must submit to supervision by a Community Corrections officer.
  • Additional conditions imposed under s 73A(2) of the Crimes (Sentencing Procedure) Act: the offender is to abstain from taking prohibited drugs during the term of the order; the offender is to perform 250 hours of community service.

Key Takeaways

  • For a common law conspiracy charge, the maximum penalty for the substantive offence serves as a yardstick, even though the conspiracy penalty is technically unlimited. Here, the 20-year maximum for robbery in company under s 97 of the Crimes Act was the guidepost applied.
  • When sentencing for conspiracy, the court assessed both the offender's specific role within the agreement and the point at which he became a party to it, rather than treating all co-conspirators identically.
  • The District Court applied a criminal standard when determining the timing of the offender's joinder to the conspiracy: it could not find beyond reasonable doubt exactly when he joined, but was satisfied he had joined before the recorded 3.53pm call on 5 December 2019.
  • Sufficient weight was given to rehabilitation prospects and the nature of the offender's role to justify an ICO rather than full-time custody, notwithstanding that an 18-month term of imprisonment was formally imposed.
  • Under s 73A(2) of the Crimes (Sentencing Procedure) Act, the court was required to impose at least one additional condition beyond the standard ICO conditions; here, two additional conditions were imposed, combining drug abstention with 250 hours of community service.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 10, 73A(2)

Cases:
- No cases were cited in the portions of the judgment provided.