Citation: R v Lo [2022] NSWDC 37
Court: District Court of New South Wales
Date: 25 January 2022
Judge: M L Williams SC DCJ
Background
The offender, a 38-year-old man with no prior criminal record, pleaded guilty to one count of demanding money with menaces in company, contrary to s 99(2) of the Crimes Act 1900. The offence carries a maximum penalty of 14 years imprisonment and attracts no standard non-parole period.
The offending arose from a joint criminal enterprise involving four men on 18 and 19 November 2020. The enterprise appeared to have its origins in a gambling debt dispute. The victim was lured from his hotel room into a car driven by the offender and was subsequently detained for approximately 24 hours at an apartment in Burwood, where demands were made for money. The victim's phone was used to contact friends and relatives in an attempt to raise $10,000, though ultimately no money was received.
The offender's role was primarily as driver and physical presence, having been recruited because, in his own words, he was a "strong man with tattoos" who might intimidate others. He was promised payment by a co-offender. When a co-offender struck the victim, the offender intervened verbally to stop it. He spent significant periods of the detention sleeping in his car and went to McDonald's to obtain food for everyone, including the victim.
Legal Issues
- Whether the s 5 threshold under the Crimes (Sentencing Procedure) Act 1999 (the requirement for a court to be satisfied that no penalty other than imprisonment is appropriate) had been crossed, requiring a term of imprisonment
- Whether that term of imprisonment should be served by way of an intensive correction order (ICO) rather than full-time custody
- The appropriate weight to be given to aggravating and mitigating factors, including the offender's role in a planned criminal enterprise and his otherwise strong subjective case
Decision
The parties conceded that the s 5 threshold had been crossed, meaning a term of imprisonment was required. The central question for the court was whether that sentence should be served in the community through an ICO or in full-time custody. The court assessed the objective seriousness of the offending by reference to the nature of the menaces, the duration of the offence, the offender's role, and the degree of planning.
On aggravating factors, the court accepted that the offence was committed for financial gain and that some planning and organisation was involved. However, there was no evidence that the offender personally participated in planning the enterprise, and the only violence directed at the victim was a common assault by a co-offender, which the offender actively protested.
The mitigating factors were substantial. The offender received a 10% discount for his guilty plea, and the court accepted his expressions of remorse, prior good character, and strong prospects of rehabilitation. A Sentencing Assessment Report rated him at low risk of reoffending and suitable for community service. He had been in stable employment since his release on bail and had committed no further offences. He had also spent nearly four months in custody following his arrest.
An analysis of sentencing statistics supported the proposition that full-time custodial sentences in comparable cases were predominantly imposed on offenders with significant prior records, unlike the offender here. The court determined that a 16-month term of imprisonment, served by way of an ICO, was appropriate. There was no evidence of danger to the community under s 66 of the Crimes (Sentencing Procedure) Act 1999.
Orders Made
- Term of imprisonment of 16 months (after a 10% guilty plea discount), to be served by way of an intensive correction order commencing 25 January 2022
- Standard ICO conditions to apply
- Additional condition: 200 hours of community service work
- The offender to report by telephone to the Parramatta office of Community Corrections by Tuesday 1 February 2022
- Backup charge of demanding property with menaces with intent to steal (sequence 2) withdrawn and dismissed
Key Takeaways
- The District Court confirmed that an ICO is an available and appropriate sentencing option for a serious offence such as demanding money with menaces in company, where the offender presents a strong subjective case and no evidence of danger to the community exists.
- Where an offender's role in a joint criminal enterprise was limited to physical presence and transportation, and the offender did not participate in planning, the court may treat the planning aggravating factor as applying only partially to that offender's culpability.
- A low risk of reoffending, stable employment, genuine remorse, prior good character, and the absence of personal planning were collectively significant in displacing full-time custody in favour of an ICO.
- Sentencing statistics showed that full-time custodial sentences for comparable offences were predominantly imposed on offenders with significant prior records, a consideration the court weighed in the offender's favour.
- Under s 66 of the Crimes (Sentencing Procedure) Act 1999, the absence of evidence of danger to the community remained a distinct and material consideration in the court's decision to impose a community-based sentence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 99(2) (demanding money with menaces in company)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A (purposes of sentencing), s 5 (imprisonment as a last resort threshold), s 21A (aggravating and mitigating factors), s 66 (community safety considerations for ICOs)
Cases cited: No cases were cited in the judgment.