Citation: R v Vassiliou [2021] NSWDC 403
Court: District Court of New South Wales
Date: 24 May 2021
Judge(s): Wilson SC DCJ
Background
The offender, a man born in 1999, was sentenced for two principal charges arising from events in April and May 2020. The first was robbery in company under s 97(1) of the Crimes Act 1900 (NSW), carrying a maximum of 20 years' imprisonment. The second was possessing an unauthorised prohibited firearm, specifically a black imitation pistol, under s 7(1) of the Firearms Act 1996 (NSW), carrying a maximum of 14 years and a standard non-parole period of four years.
The robbery occurred on 27 April 2020 at Yagoona. The offender's younger sister, then aged approximately 16, had lured the 18-year-old complainant from Liverpool to Yagoona using Instagram messages and the promise of a sexual encounter. When the complainant arrived, the offender and another male attacked him. The offender demanded the complainant hand over his wallet, phones, and other items, which the complainant did under duress. Later that night, the offender used the complainant's bank card to buy cigarettes at a nearby 7-Eleven, giving rise to a fraud offence on the Form 1.
When police executed a search warrant at the offender's home on 5 May 2020, they found 99 rounds of .22 calibre ammunition in his bedroom and the imitation pistol in the garage. These discoveries produced the firearms-related charges. Two Form 1 offences (possessing ammunition and obtaining financial advantage by deception) were taken into account on sentencing for the principal charges.
Legal Issues
- Whether the s 5 threshold under the Crimes (Sentencing Procedure) Act 1999 (NSW) was met for the firearms offence, making imprisonment the appropriate sentencing outcome for that charge
- How to treat the standard non-parole period of four years for the firearms offence, given the court's assessment of its objective seriousness
- What discount to apply for the offender's assistance to authorities, where that assistance proved unfruitful
- Whether the onerous conditions of the offender's bail justified an adjustment to the sentence commencement date
- Whether parity with the co-offender (the offender's sister, sentenced as a child) was a relevant consideration
Decision
Wilson SC DCJ found that the robbery in company was a serious offence warranting full-time imprisonment. The offender had committed it while subject to a Conditional Release Order, which aggravated the offending. The court took the two Form 1 matters into account by giving greater weight to personal deterrence and retribution, as required by the sentencing framework.
On the firearms charge, the court accepted the parties' joint submission that the objective seriousness fell below the mid-range and that the s 5 threshold for imprisonment had not been met. Accordingly, no term of imprisonment was imposed for that offence. Because the standard non-parole period of four years applies only at the mid-range of objective seriousness and only where imprisonment is imposed, it had no application in this case.
The offender had provided assistance to authorities, but that assistance proved unfruitful. The court acknowledged the assistance nonetheless and allowed a small discount, recognising that the futility of assistance should not entirely negate credit for the willingness to cooperate. The court also factored in the onerous bail conditions the offender had endured for approximately 283 days, allowing 25 percent of that period in determining the sentence commencement date.
The sister's sentence in the Parramatta Children's Court (a 12-month probation order without conviction) did not give rise to a parity argument. Because she was sentenced under the children's legislation rather than at law, the court held that the parity principle had no application as between the two proceedings.
Orders Made
- For robbery in company (sequence 6): term of imprisonment with a non-parole period expiring 2 August 2022 and a head sentence expiring 19 September 2023
- For possessing an unauthorised prohibited firearm (sequence 7): Community Corrections Order for three years, commencing 24 May 2021 and expiring 23 May 2024, with conditions including no offending, appearance before the court if required, abstention from illicit drugs, and engagement with rehabilitation or counselling as directed by Community Corrections
- Destruction ordered of the imitation firearm (sequence 7) and the ammunition (sequence 4)
- Offender taken into custody
Key Takeaways
- The parity principle does not apply where a co-offender is sentenced under children's legislation rather than under the ordinary criminal law, even where the co-offenders are related and committed the same offence together.
- A standard non-parole period is relevant only where the offence falls at the mid-range of objective seriousness assessed on objective factors alone, and only where imprisonment is actually imposed; it does not operate as a mandatory minimum.
- Where an offender's assistance to authorities is genuine but ultimately unfruitful, the District Court confirmed that a small sentencing discount may still be appropriate to reflect the willingness to assist.
- Onerous bail conditions, such as restrictions confining an offender to supervised home-leaving, can justify an adjustment to the sentence commencement date even though they fall short of full custody.
- Under s 5 of the Crimes (Sentencing Procedure) Act 1999, a court must be satisfied that no sentence other than imprisonment is appropriate before imposing a custodial term; where that threshold is not met, an alternative such as a Community Corrections Order is available even for serious firearms offences.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW) ss 97(1), 192E(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5, 23
- Firearms Act 1996 (NSW) ss 4(1), 4D(3), 7(1), 65(3)
- Children (Criminal Proceedings) Act 1987 (NSW) s 33(1)(e)
Cases:
- Markarian v The Queen [2005] HCA 25
- R v Henry (1999) 46 NSWLR 346