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District Court 11 March 2021

R v Ioannou

[2021] NSWDC 120

Assault & violenceFraud & dishonestyTheft & propertyTraffic & driving

Citation: R v Ioannou [2021] NSWDC 120
Court: District Court of New South Wales
Date: 11 March 2021
Judge: Buscombe DCJ

Background

The offender pleaded guilty to five substantive offences committed across three days in July 2019, together with four further offences acknowledged on a Form 1 (a procedural mechanism allowing a sentencing court to take additional offences into account without separately convicting the offender of each one) and two drive-whilst-disqualified offences dealt with by way of conviction only.

The offending began on the night of 19 to 20 July 2019, when the offender broke into a locked garage in Turramurra and stole a white Range Rover Evoque. He then used that vehicle over the following days to commit further offences, including stealing a handbag from a parked car in Quakers Hill and using the stolen credit cards found inside it at multiple service stations and fast-food outlets in the early hours of the morning.

On the morning of 22 July 2019, after police identified the stolen Range Rover and commenced surveillance, the offender and a co-offender carjacked a Holden Barina at Bidwill, threatening and physically overpowering its driver. When police subsequently pursued the Barina, the offender drove it in a manner dangerous to others and failed to stop as required.

  • What aggregate custodial sentence was appropriate, having regard to the nature, number, and sequence of the offences?
  • How should the standard non-parole period applicable to the aggravated take-and-drive offence (s 154C(2), Crimes Act 1900 (NSW)) be applied as a guidepost in the overall sentencing exercise?
  • What weight should be given to the offender's guilty plea, subjective circumstances, and any relevant background factors (including indigeneity where applicable)?
  • What licence disqualification periods were appropriate for the driving offences, and from when should they run?

Decision

Buscombe DCJ sentenced the offender on all five substantive matters and the Form 1 offences by way of an aggregate sentence under the Crimes (Sentencing Procedure) Act 1999 (NSW). Her Honour set indicative sentences for each component offence before arriving at the aggregate figure, a process that assists in structuring the overall penalty and ensuring transparency, even though only one aggregate sentence is formally imposed.

The aggravated take-and-drive offence (carjacking the Barina with the owner inside and in company) carried the most significant weight. That offence attracts a standard non-parole period of five years as a legislative guidepost, reflecting Parliament's view of the seriousness of mid-range offending of that type. Her Honour took into account the guilty pleas, the offender's personal circumstances, and principles from cases including Bugmy v R (concerning the weight to be given to background disadvantage in sentencing) and Muldrock v R (the High Court's guidance on the role of standard non-parole periods).

For the two drive-whilst-disqualified offences on the s 166 certificate, the District Court recorded convictions under s 10A of the Crimes (Sentencing Procedure) Act without imposing any further penalty beyond a six-month licence disqualification for each. The police pursuit offence attracted a separate disqualification of two years and six months. All disqualification periods were ordered to run concurrently, commencing only upon the offender's release from custody in accordance with the Road Transport Act 2013 (NSW).

Orders Made

  • Aggregate sentence of four years and four months imprisonment, commencing 22 August 2019 and expiring 21 December 2023
  • Aggregate non-parole period of two years and two months, expiring 21 October 2021
  • For each of the two drive-whilst-disqualified offences on the s 166 certificate: conviction recorded under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW); no further penalty; six-month licence disqualification for each offence
  • For the police pursuit offence: licence disqualification of two years and six months
  • All disqualification periods to be served concurrently, commencing upon release from custody under the Road Transport Act 2013 (NSW)

Key Takeaways

  • An aggregate sentencing structure under the Crimes (Sentencing Procedure) Act 1999 (NSW) requires the court to set indicative individual sentences before fixing the overall term, providing a transparent basis for the aggregate figure.
  • Under Muldrock v R (2011) 248 CLR 580, standard non-parole periods operate as legislative guideposts rather than fixed starting points; their relevance must be assessed in light of all the circumstances of the particular offence and offender.
  • The carjacking provision in s 154C(2) of the Crimes Act 1900 (NSW), which applies where the offender takes and drives a vehicle while the owner is present and the offender is in company, carries a maximum of 14 years and a five-year standard non-parole period, reflecting the serious nature of that form of offending.
  • Section 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW) permits a court to record a conviction without imposing any additional penalty, a disposition available where the circumstances of the offence and offender warrant recognition of guilt but no further punishment beyond conviction.
  • Licence disqualifications imposed in connection with custodial sentences do not begin to run until the offender is released from custody, pursuant to the Road Transport Act 2013 (NSW).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 51B(1), 112(1)(a), 117, 154C(2), 192E(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 10A, 21A
- Road Transport Act 2013 (NSW)
- Criminal Procedure Act 1986 (NSW), s 166

Cases
- Muldrock v R [2011] HCA 39
- Bugmy v R (2013) 249 CLR 571
- R v Henry (1999) 46 NSWLR 346
- DPP v De La Rosa [2010] NSWCCA 194
- Lawson v R [2018] NSWCCA 215