AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 16 December 2021

R v Sultan

[2021] NSWDC 776

Assault & violenceTheft & propertyPublic order & justice offences
CRIME SENTENCE PLEA GUILTY (2) CONSPIRACY TO ROB IN COMPANY OFFENDERS. PERSONAL CIRCUMSTANCES BUGMY CONSIDERATIONS

Citation: R v Sultan [2021] NSWDC 776
Court: District Court of New South Wales
Date: 16 December 2021
Judge: Neilson DCJ

Background

The offender, a man aged 25 at the time of the first offence, pleaded guilty to three offences arising from a series of connected criminal acts in mid-2019. The most serious was specially aggravated kidnapping under s 86(3) of the Crimes Act 1900 (NSW), which carries a maximum of 25 years imprisonment. The offender and associates abducted a man named Mr Nasser from the street in Lakemba, transported him to the offender's unit in Campsie, and subjected him to sustained violence and threats in the mistaken belief he possessed large sums of money.

The second offence was a common law conspiracy to rob in company, arising from a separate plan to steal tobacco products from another individual. The third offence, dealt with under Local Court jurisdiction, was doing an act intending to pervert the course of justice under s 319 of the Crimes Act 1900. The offender had been in custody since his arrest on 5 December 2019, meaning he had served over two years by the time of sentencing.

A further aggravated break and enter with intent to steal was taken into account on a Form 1 (a procedural mechanism allowing associated offences to be considered in sentencing without attracting a separate penalty).

  • What sentence was appropriate for three offences of differing seriousness, taking into account the maximum penalties and the absence of standard non-parole periods for two of them?
  • How should the principle of parity apply, given co-offenders had already been sentenced?
  • What weight should be given to the offender's personal circumstances, including background disadvantage (Bugmy considerations) and prospects of rehabilitation?
  • Was there a basis to find special circumstances justifying a non-parole period that departs from the statutory default of one-third of the head sentence?
  • How should the totality principle shape an aggregate sentence across the three offences?

Decision

Neilson DCJ set out indicative sentences for each offence before applying the totality principle. The kidnapping charge, together with the Form 1 matter, attracted an indicative sentence of three years and two months. The conspiracy to rob in company attracted one year and eight months. The perverting the course of justice charge attracted one year and ten months. The arithmetic total of those indicative sentences was six years and eight months.

Applying the totality principle, the court reduced the aggregate to five years imprisonment. The totality principle requires a court to step back and assess whether the combined sentence is proportionate to the overall criminality, rather than simply accumulating individual terms.

The court found special circumstances, warranting a departure from the standard non-parole period ratio. The offender's personal history included significant disadvantage, and the court accepted that a longer parole period was needed to allow Community Corrections to assist him in addressing substance use, alcohol dependence, and gambling. Parity with co-offenders, who had been sentenced in earlier proceedings, was also considered in calibrating the result.

The non-parole period was set at two years and six months, commencing from the date of arrest on 5 December 2019, meaning the offender was eligible for release on or about 4 June 2022. The balance of sentence extended for a further two years and six months, with a total sentence end date of 4 December 2024.

Orders Made

  • Convicted on all three charges to which the offender pleaded guilty.
  • Aggregate sentence of five years imprisonment imposed.
  • Non-parole period of two years and six months, commencing 5 December 2019 and expiring 4 June 2022.
  • Balance of sentence of two years and six months, commencing 5 June 2022 and expiring 4 December 2024.
  • Special circumstances found.
  • Form 1 matter (aggravated break and enter with intent) taken into account.
  • Indicative sentences recorded as: kidnapping plus Form 1 matter, three years and two months; conspiracy to rob in company, one year and eight months; perverting the course of justice, one year and ten months.

Key Takeaways

  • The totality principle operated to reduce what would otherwise have been a combined term of six years and eight months down to an aggregate of five years, reflecting the court's assessment that the arithmetic total would be disproportionate to the offender's overall criminality.
  • A finding of special circumstances under the Crimes (Sentencing Procedure) Act 1999 justified a non-parole period of exactly half the total sentence, departing from the standard one-third ratio, where the offender's background disadvantage and rehabilitation needs required an extended period of supervised parole.
  • Bugmy considerations, referring to the High Court's guidance on how severe social disadvantage in an offender's background should be weighed in sentencing, informed the court's assessment of the offender's moral culpability and prospects for rehabilitation.
  • Parity with co-offenders sentenced in related proceedings (R v Colvin (No 2) and R v Jones) was treated as a relevant constraint in fixing the appropriate sentence.
  • For a common law conspiracy offence, where the maximum penalty is at large, the District Court drew guidance from the statutory maximum applicable to the substantive offence (robbery in company under s 97(1), carrying 20 years) as a reference point for proportionality.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): ss 86(3), 97(1), 319
- Criminal Procedure Act 1986 (NSW): s 166(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Dickson v R [2016] NSWCCA 105
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Lowe v R (1984) 154 CLR 606
- Postiglione v R (1997) 189 CLR 294
- R v Colvin (No 2) [2021] NSWDC 494
- R v Davies [2004] NSWCCA 310
- R v Henry (1999) 46 NSWLR 346
- R v Jones [2021] NSWDC 478
- R v Masters (1992) 26 NSWLR 450
- R v Murchie (1999) 108 A Crim R 482
- R v Newell [2004] NSWCCA 183
- R v Savvas (2) (1991) 58 A Crim R 174
- R v Shore (1992) 66 A Crim R 37
- R v VL [2005] NSWCCA 301
- Tyler v R (2007) 173 A Crim R 458
- Valentine v R [2020] NSWCCA 116