Citation: R v Radanovic; R v Howard [2021] NSWDC 743
Court: District Court of New South Wales
Date: 22 November 2021
Judge: M L Williams SC DCJ
Background
Two co-offenders were sentenced for a kidnapping and armed robbery carried out on the afternoon of 27 January 2021 in Sydney. The victim, a 22-year-old woman, was approached in a supermarket car park at Wolli Creek by both offenders, who were masked and armed. She was forced at knifepoint into her own car and driven to her home unit.
Once inside the unit, the offenders stole a significant quantity of property and cash, totalling approximately $8,100 in cash plus numerous luxury goods. Throughout the ordeal, threats were made referencing a firearm (though none was sighted), and the victim's family addresses were used to intimidate her. The victim's partner was also telephoned and threatened. Police ultimately intercepted both offenders at the unit building entrance.
Both offenders pleaded guilty. One (Radanovic, aged 37) was arrested on the day of the offence and provided information that attracted a further discount for assistance. The other (Howard, aged 22) was arrested the following day at Woy Woy and had initially provided a false account to police, which he later conceded.
Legal Issues
- What aggregate sentences were appropriate for each offender, having regard to the seriousness of the offending and applicable maximum penalties?
- What discounts applied for each offender's guilty plea, and whether any additional discount was warranted for assistance to authorities?
- How should the moral culpability of co-offenders in a joint enterprise be individually assessed, particularly where their subjective circumstances differ?
- Whether special circumstances existed justifying a departure from the standard ratio between the non-parole period and the balance of the sentence?
Decision
The court characterised the offending as grave, carried out in broad daylight, in a planned and organised manner, and with significant impact on the victim. Both offenders received a 25% discount for their early guilty pleas. Radanovic received an additional 5% discount (for a total of 30%) reflecting low to medium assistance under s 23 of the Crimes (Sentencing Procedure) Act 1999. The court found that full-time imprisonment was appropriate in both cases and that no alternative sentencing options required consideration.
Despite Radanovic receiving a larger overall discount, the aggregate sentence imposed on Howard was marginally higher. The court explained this outcome by reference to Howard's lesser discount, balanced against his more favourable subjective case, including his younger age. Conversely, Radanovic's slightly more serious prior record and the weighing of his subjective circumstances resulted in a slightly lower aggregate term, though both offenders received the same non-parole period of two years.
The court found special circumstances in both cases, citing the need for extensive post-release supervision and rehabilitation, the particularly difficult custodial conditions during the COVID-19 pandemic, and each offender's need to address drug addiction and associated mental health issues. The guideline judgment in R v Henry (1999) 46 NSWLR 346 for armed robbery was taken into account in assessing the appropriate sentencing range.
Orders Made
Radanovic:
- Convicted of both offences
- Indicative sentence (Sequence 1 — take and detain in company): 2 years 6 months
- Indicative sentence (Sequence 2 — robbery armed with offensive weapon): 3 years
- Aggregate sentence: 3 years and 5 months, commencing 27 January 2021
- Non-parole period: 2 years, expiring 26 January 2023
- Special circumstances found
Howard:
- Convicted of both offences
- Indicative sentence (Sequence 1 — take and detain in company): 2 years 8 months
- Indicative sentence (Sequence 2 — robbery armed with offensive weapon): 3 years 2 months
- Aggregate sentence: 3 years and 6 months, commencing 28 January 2021
- Non-parole period: 2 years, expiring 27 January 2023
- Special circumstances found
Key Takeaways
- A 25% discount for an early guilty plea applied to both co-offenders, with an additional 5% allowed for Radanovic's low to medium assistance to authorities, producing a total 30% discount for him under s 23 of the Crimes (Sentencing Procedure) Act 1999.
- Where co-offenders participate in the same criminal enterprise, the District Court assessed their moral culpability individually, taking into account differing subjective circumstances, age, criminal records, and the level of cooperation with authorities.
- Aggregate sentences can legitimately differ between co-offenders even where the non-parole period is identical, reflecting the interaction between discount rates and subjective case considerations.
- Special circumstances were established on the combined basis of rehabilitation needs, drug addiction, the impact of COVID-19 custodial conditions, and the requirement for intensive post-release supervision, resulting in a non-parole period shorter than the standard proportion of the head sentence.
- The court applied the Henry guideline for armed robbery as a sentencing yardstick, alongside the statutory purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999, treating the 20-year maximum penalties for both offences as indicators of legislative seriousness.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 86(2)(o), 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 23
Cases:
- R v Henry (1999) 46 NSWLR 346 (guideline judgment for armed robbery sentencing)
- Bugmy v The Queen (2013) 249 CLR 571