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District Court 17 March 2022

R v ZA

[2022] NSWDC 403

Assault & violenceTheft & property

Citation: R v ZA [2022] NSWDC 403
Court: District Court of New South Wales
Date: 17 March 2022
Judge: Bright DCJ

Background

A 21-year-old offender, referred to as ZA, appeared before the Gosford District Court for sentencing on three offences arising from an incident on 29 January 2021. That evening, ZA approached a 27-year-old man near Gosford railway station and demanded money, escalating through threats and intimidation before taking $100 cash and the victim's prescription glasses. ZA also punched the victim in the face before leaving the scene.

Police arrested ZA later that night during a bail compliance check at his address, at which point they also found a small quantity of methylamphetamine. ZA was already subject to an Intensive Correction Order and two Community Correction Orders at the time of the offending.

ZA pleaded guilty on 26 November 2021 at Gosford Local Court and had been in custody since his arrest, having served portions of pre-existing sentences during that period. The sentencing exercise required the court to balance ZA's youth and personal circumstances against the need for punishment, denunciation, and general deterrence.

  • What discount was appropriate for the timing of the guilty plea?
  • How should the objective seriousness of the robbery and assault be assessed?
  • What weight should be given to ZA's criminal history, youth, and personal circumstances in mitigation?
  • Whether the new sentence should be served cumulatively or concurrently with existing sentences, and if so, to what extent.
  • Whether the sentence should be served by way of an Intensive Correction Order or full-time custody.
  • Whether special circumstances existed to justify a non-parole period shorter than the statutory default ratio.

Decision

Bright DCJ assessed the robbery as below the middle of the range of objective seriousness, noting the spontaneous nature of the offending, the relatively short duration, and the property taken (cash and glasses). The judge acknowledged that ZA made a death threat and a racially derogatory remark during the incident, both of which were significant. The assault occasioning actual bodily harm, consisting of a single punch that caused a cut inside the victim's mouth, was assessed as well below the middle of the range.

A 25% discount was applied to reflect the timing of the guilty plea. ZA's status as being on conditional liberty at the time (subject to an Intensive Correction Order and Community Correction Orders) was treated as an aggravating factor. His criminal history was noted but not separately treated as an aggravating factor in its own right, in accordance with the court's sentencing approach in the circumstances.

The court considered ZA's youth, difficult upbringing, and prospects for rehabilitation, including the principles from Bugmy v R regarding the relevance of background disadvantage to moral culpability. While accepting that rehabilitation might be better served in the community through an Intensive Correction Order, Bright DCJ concluded that punishment, denunciation, and general deterrence required full-time custody.

The new sentence was ordered to run wholly cumulatively upon the existing sentence, commencing 29 April 2022. A significant finding of special circumstances was made, resulting in a non-parole to parole ratio of 50:50, to reflect the extended total period of supervision and the rehabilitative goals of parole. The drug possession offence attracted a conviction with no further penalty under s 10A of the Crimes (Sentencing Procedure) Act 1999.

Orders Made

  • ZA convicted of robbery and assault occasioning actual bodily harm.
  • Aggregate sentence of 2 years and 3 months imprisonment, commencing 29 April 2022 and expiring 28 July 2024.
  • Non-parole period of 6 months, commencing 29 April 2022 and expiring 28 October 2022, with release to parole directed on that date.
  • Total effective sentence of 3 years and 6 months, with a non-parole period of 1 year and 9 months and a balance of term of 1 year and 9 months.
  • Special circumstances found, resulting in a 50/50 non-parole to balance-of-term ratio.
  • ZA convicted of possess prohibited drug; no further penalty imposed pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999.

Key Takeaways

  • The District Court assessed the robbery as below the middle of the range of objective seriousness, notwithstanding the death threat and racially derogatory remark, primarily because the offending was spontaneous and of relatively short duration.
  • A finding of special circumstances can significantly alter the statutory non-parole ratio, here producing a 50:50 split between the non-parole period and the balance of term, where the sentence was to be served wholly cumulatively upon existing sentences.
  • Rehabilitation prospects in the community through an Intensive Correction Order will not necessarily prevail where the purposes of punishment, denunciation, and general deterrence weigh against it; community safety remains the paramount consideration under s 66 of the Crimes (Sentencing Procedure) Act 1999.
  • Under the principles in Bugmy v R, background disadvantage and youth remain relevant to an assessment of moral culpability at sentencing, even where an offender has an established criminal history.
  • Where an offender's criminal history is present, it does not automatically function as a separate aggravating factor; the sentencing court retains discretion as to the weight and use of that history in the overall sentencing exercise.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 59(1), 94A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 10A, 66
- Drug Misuse and Trafficking Act 1985 (NSW), s 10(1)

Cases
- Bugmy v R [2013] HCA 37
- Cahyadi v R [2007] NSWCCA 1
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- Ozan v R [2021] NSWCCA 231
- Postiglione v R (1997) 189 CLR 295