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District Court 2 September 2022

R v Dogan

[2022] NSWDC 391

Assault & violenceTheft & propertyPublic order & justice offences
SENTENCE COMMON ASSAULT DETENTION APPLICATION DESTROY OR DAMAGE PROPERTY

Citation: R v Dogan [2022] NSWDC 391
Court: District Court of New South Wales
Date: 2 September 2022
Judge: Mahony SC DCJ

Background

The offender, born in 1990, was sentenced following guilty pleas entered in the Local Court to three principal offences arising from a road rage incident on 21 June 2021 on Victoria Road, Gladesville. The incident began when the offender, apparently angry that the victim had not let his vehicle merge, pulled up behind the victim's car at a red light and approached on foot.

The confrontation escalated in two distinct stages. In the first stage, the offender spat on the victim through his open window, slapped him across the face several times, grabbed his t-shirt and attempted to drag him from the vehicle, and spat on him repeatedly during a struggle lasting approximately one minute. He then threatened the victim, saying "You are going to get killed."

In the second stage, after both vehicles moved forward slightly and stopped again, the offender retrieved a hammer from his boot and returned to the victim's car. He smashed the driver's side window with the hammer, causing glass to fall on the victim and his passenger, then swung the hammer toward the victim's head for approximately one minute while screaming and swearing. The victim's passenger shielded his head with her hands. A female passenger from the offender's vehicle then approached the victim's car and warned both occupants they did not know who the offender was.

  • What aggregate sentence was appropriate for the three principal offences, having regard to the offender's criminality and personal circumstances?
  • Whether the sentence should be served by way of an Intensive Correction Order (ICO) rather than full-time custody, given the offender's background and prospects of rehabilitation.
  • How the 73 days spent in custody following revocation of the offender's parole should be taken into account.
  • What weight to give to the offender's prior serious drug trafficking conviction and his positive performance on parole supervision.

Decision

His Honour sentenced the offender on three principal offences: using an offensive weapon with intent to commit an indictable offence (maximum 12 years), stalking and intimidating with intent to cause fear of physical harm under the Crimes (Domestic and Personal Violence) Act 2007 (maximum 5 years), and common assault (maximum 2 years). Three further common assault charges and a property damage charge were placed on a Form 1 to be taken into account on sentence, a procedure by which an offender admits guilt and asks the court to consider those matters without a separate conviction being recorded.

The offender had a prior conviction from 2018 for manufacturing a prohibited drug in a quantity exceeding the large commercial quantity threshold, for which he received 7 years and 6 months imprisonment with a non-parole period of 4 years and 6 months. His parole was revoked on the day of the index offending, and he spent 73 days in custody before bail was granted and parole reinstated. His Honour credited that period against the sentence. Despite the serious criminal history, the Breach of Parole report noted the offender had responded positively to supervision, engaged in drug management programs, tested negative for illicit drugs, maintained employment and had strong family support. Community Corrections had in fact recommended no action be taken on parole following the index offending.

In assessing whether an ICO was appropriate, His Honour weighed the seriousness of the offences, particularly the use of the hammer and the threats made, against the offender's demonstrated response to community supervision, the support of the Parole Service for his bail, and his compliance with onerous bail conditions without further offending. The court found those factors, taken together, justified an ICO rather than full-time custody.

His Honour imposed an aggregate sentence of 2 years and 6 months, to be served by way of an ICO commencing 2 September 2022. The sentence period was structured to accommodate the 73 days already served and to extend community supervision beyond the expiry of the offender's existing parole on 18 July 2023.

Orders Made

  • The offender was convicted of: use of an offensive weapon with intent to commit an indictable offence (s 33B(1)(a), Crimes Act 1900); stalking/intimidating with intent to cause fear of physical harm (s 13(1), Crimes (Domestic and Personal Violence) Act 2007); and common assault (s 61, Crimes Act 1900).
  • An aggregate sentence of 2 years and 6 months imprisonment was imposed pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999.
  • The sentence is to be served by way of an Intensive Correction Order (ICO), commencing 2 September 2022.
  • The offender must report to the Community Corrections Office at Bankstown as soon as practicable, and no later than 7 days from the date of the order.
  • Standard ICO conditions apply: no further offences; submit to supervision by a Community Corrections Officer.
  • Additional condition: participation in any rehabilitation program or treatment recommended by a treating doctor.
  • The offender was directed to attend the court registry for the order to be explained and provided to him.

Key Takeaways

  • An aggregate sentence of 2 years and 6 months was imposed for a series of offences arising from a single road rage incident, with the principal offence being use of an offensive weapon (a hammer) with intent to commit an indictable offence.
  • The District Court found that a prior serious drug conviction does not automatically preclude an ICO where the offender has since demonstrated genuine and sustained engagement with community supervision, drug management programs, and lawful employment.
  • Time spent in custody following revocation of parole as a direct consequence of the index offending was credited against the sentence, consistent with the requirement to avoid double punishment for the same conduct.
  • Where the Parole Service itself has endorsed bail and noted positive supervision outcomes, that institutional assessment is a relevant factor in the sentencing court's consideration of whether an ICO is appropriate.
  • Compliance with onerous bail conditions over an extended period, without breach or further offending, can be a mitigating factor on sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33B(1)(a), 61, 195(1)(a)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 7, 53A

Cases
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Mandranis v R (2021) 289 A Crim R 260; [2021] NSWCCA 97
- R v Edelbi (2021) 105 NSWLR 133; [2021] NSWCCA 122
- R v Henry [1999] NSWCCA 111
- R v Pullen (2018) 275 A Crim R 509; [2018] NSWCCA 264
- R v Van Ryn [2016] NSWCCA 1