Citation: R v Silvano [2021] NSWDC 367
Court: District Court of New South Wales
Date: 28 April 2021
Judge(s): Colefax SC DCJ
Background
The offender was a 25-year-old woman who pleaded guilty to one count of aggravated assault and taking a motor vehicle, contrary to s 154C(2) of the Crimes Act 1900 (NSW). The offence carried a maximum penalty of 14 years imprisonment and a standard non-parole period of five years.
The offending occurred on 8 January 2020. The offender had met the victim, an Uber driver, only days earlier. She lured him to Minto railway station late at night under the pretence of repaying money she had borrowed, then orchestrated his attendance at a second location where a male co-offender, Mr Harley, punched and headbutted the victim and held scissors to his throat. While the assault was taking place, the offender took the victim's car keys and drove away in the vehicle.
The offender was on parole at the time of the offending, and her parole was subsequently revoked. She had been in custody from the date of her arrest on 10 January 2020.
Legal Issues
- Whether the offender had prior knowledge of the plan to steal the motor vehicle, or whether she participated only at the moment the keys were thrown to her.
- Whether the offender knew that actual violence, or the threat of violence, would be used against the victim.
- The appropriate objective seriousness of the offence and applicable sentence.
- What subjective factors, including mental health, prior criminality, and both past and future assistance to authorities, warranted discount or adjustment to the sentence.
- Whether special circumstances existed to justify varying the standard non-parole period ratio.
Decision
Knowledge of the plan. The offender submitted she was unaware of the robbery plan and claimed Mr Harley threw the car keys to her, at which point she agreed to participate out of fear. Colefax SC DCJ rejected this account. His Honour found the only rational inference from the agreed facts was that the offender had been a knowing participant in the plan from the outset, having lured the victim to the station and coordinated events throughout the evening. The Judge also found the offender to be an unreliable witness, noting she had fabricated entries on a mobile phone and told police an account the court found to be false.
Knowledge of violence. The Crown did not assert, and the court was not satisfied beyond reasonable doubt, that the offender knew Mr Harley was carrying scissors or that actual violence would occur. However, the court was satisfied beyond reasonable doubt that the offender knew there was a real risk Mr Harley would inflict violence or cause the victim to fear violence in the course of the robbery.
Objective seriousness and subjective factors. The offence was assessed as mid-range for its type. The fact that it was committed while the offender was on parole was treated as an additional aggravating factor, separate from the assessment of objective seriousness. The offender's subjective case was characterised as "very unfortunate." She suffered from complex post-traumatic stress disorder and severe illicit substance disorder, as diagnosed by Dr Kerri Eagle. The court accepted Dr Eagle's clinical diagnosis based on the offender's presentation, even where the underlying histories provided by the offender could not be verified and were in some respects demonstrably false.
Discounts and sentence. The court applied a total discount of 45% from the notional sentence of six years: 25% for the guilty plea, 15% for past assistance to authorities, and a further 5% for an undertaking to give evidence against Mr Harley in future proceedings if required. The resulting sentence was three years and three months imprisonment. Special circumstances were found to justify a longer parole period, given the offender's mental health difficulties in custody and the view that a longer supervisory period would better serve rehabilitation prospects, notwithstanding the caution the court expressed about those prospects.
Orders Made
- Sentence of three years and three months imprisonment, backdated to 10 January 2020 (the date of arrest).
- Non-parole period of one year and nine months, expiring 9 October 2021.
- Balance of parole of one year and six months, from 10 October 2021, expiring 9 April 2023.
- The two psychiatric reports of Dr Kerri Eagle (exhibits 1 and 2) to accompany the warrants.
Key Takeaways
- The District Court confirmed that where agreed facts admit of only one rational inference, a sentencing court may draw that inference against the offender, even where the offender gives contrary evidence, particularly where the court finds that witness unreliable.
- Knowledge of a co-offender's precise method of violence is not required for an offender to be held responsible for the aggravated element of an offence; awareness of a real risk that violence or the fear of violence would be used is sufficient.
- A psychiatric diagnosis based on clinical presentation may be accepted by a sentencing court even where the offender's own account of the events said to underlie the disorder is not accepted as truthful.
- Under s 154C(2) of the Crimes Act 1900, commission of the offence while on parole operates as an aggravating factor additional to, and not subsumed within, the assessment of the offence's objective seriousness.
- Combined discounts for a guilty plea, past assistance, and undertakings as to future assistance can, in an appropriate case, produce a substantial reduction from the notional sentence, here totalling 45%.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 154C(2) (aggravated assault and take motor vehicle)
Cases cited:
No cases were cited in the judgment.