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District Court 20 August 2021

R v Charters

[2021] NSWDC 425

Theft & propertyFirearms & weaponsPublic order & justice offences
CRIME SENTENCING FOLLOWING JURY TRIAL ROBBERY ARMED WITH A DANGEROUS WEAPON PARITY YOUTH ADDICTION

Citation: R v Charters [2021] NSWDC 425
Court: District Court of New South Wales
Date: 20 August 2021
Judge: Wilson SC DCJ

Background

The offender, a woman aged 22 at the time of the offending, was convicted by jury of two offences arising from an incident in the early hours of 30 January 2019 at Beverly Hills, NSW. Working with a co-offender, she lured a victim to a meeting through a fake online dating profile, then participated in robbing him while both offenders impersonated police officers. The co-offender held a taser to the victim's face while the offender took the victim's phone, wallet, and car keys, before both drove away in the victim's car.

The offender had begun using drugs of addiction at age 15 and met her co-offender, Jacob Perger, in 2018. Perger had been sentenced separately by a different judge in December 2020, receiving a discounted sentence after an early guilty plea on a single charge. The offender was sentenced after a jury trial, which concluded on 19 April 2021.

At the time of sentencing, the offender had been in custody for 129 days referable to this offending. The offences were also committed while she was on bail for separate charges.

  • What was the appropriate sentence for robbery armed with a dangerous weapon (s 97(2), Crimes Act 1900 (NSW), maximum 25 years) and impersonating a police officer while purporting to exercise police powers (s 546D(2), maximum 7 years)?
  • What weight should be given to the offender's youth, history of drug addiction, and rehabilitation prospects as mitigating factors?
  • How should the parity principle apply, given that the co-offender Perger had already been sentenced, received a 25% discount for his early guilty plea, and was sentenced on a single count?
  • What was the appropriate structure of an aggregate sentence, including the non-parole period and degree of concurrency between the two counts?

Decision

The court accepted that several mitigating factors reduced the appropriate sentence below what it would otherwise have been. The offender had a history of drug addiction from a young age, and Perger exercised a degree of control over her, though this did not amount to duress in a legal sense. Her rehabilitation since the offending was described as promising, and her family relationships had improved following a period of abstinence from drugs.

On parity, the court acknowledged the risk of a justifiable sense of grievance arising from any sentence that appeared harsher than Perger's, given the structural differences between the two cases. However, the court reasoned that Perger's 25% discount for an early guilty plea and the fact he was sentenced on only one count were counterbalanced by his more dominant role, the offender's lesser involvement, and her stronger subjective case. The court concluded that, had it been sentencing both offenders simultaneously, it would have imposed a harsher sentence on Perger than on the offender.

The court applied a 5% discount to the indicative sentences. An indicative term of 18 months was set for the police impersonation offence and 4 years and 6 months for the armed robbery. The court allowed substantial concurrency with limited accumulation between the two counts, arriving at an aggregate head sentence of 5 years' imprisonment. The non-parole period was set at 2 years, reflecting a 40:60 split between non-parole and parole periods.

Orders Made

  • The offender was convicted of impersonating a police officer and purporting to exercise police powers with intent to deceive (s 546D(2), Crimes Act 1900 (NSW)).
  • The offender was convicted of robbery armed with a dangerous weapon (s 97(2), Crimes Act 1900 (NSW)).
  • Aggregate head sentence of 5 years' imprisonment, commencing 14 April 2021 and expiring 13 April 2026.
  • Aggregate non-parole period of 2 years, expiring 13 April 2023, at which time the offender becomes eligible for release on parole.

Key Takeaways

  • The District Court applied the parity principle by comparing the structural features of each co-offender's case rather than simply aligning numerical outcomes, noting that a guilty plea discount and a reduced charge count for one offender could legitimately counterbalance a lesser role and stronger subjective case for the other.
  • Where a co-offender exercises control over another participant, falling short of legal duress, that influence can still operate as a mitigating factor warranting a more lenient sentence for the less dominant party.
  • Rehabilitation progress and the disrupting effect of drug addiction from a young age, assessed alongside the principles in Bugmy v The Queen [2013] HCA 27, were treated as meaningful mitigating considerations even where the offending was objectively serious.
  • An aggregate sentencing structure under the Crimes (Sentencing Procedure) Act 1999 (NSW) may reflect substantial concurrency with limited accumulation between counts, with the degree of accumulation tied to the distinct nature of each offence.
  • The offender's commission of these offences while on bail for other charges was an aggravating factor under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), weighed against the mitigating circumstances of youth, addiction, and rehabilitation.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 97(2), 546D(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A(2), 21A(3), 21A(5AA)

Cases
- Bugmy v The Queen [2013] HCA 27
- Dang v R [2013] NSWCCA 246
- Legge v R [2007] NSWCCA 244
- Mustafa v R [2021] NSWCCA 164
- R v Henry (1999) 46 NSWLR 346
- R v Osenkowski (1982) 5 A Crim R 394
- R v Valentini (1989) 46 ACR 23
- Thomson & Houlton [2000] NSWCCA 309