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District Court 25 August 2022

R v Black

[2022] NSWDC 480

Assault & violenceFraud & dishonestyTheft & propertyDomestic & family violence
CRIME RELEVANT FACTORS ON SENTENCE LATE GUILTY PLEA JOINT CRIMINAL ENTERPRISE HUMILIATION OF THE VICTIM BACKGROUND OF HARDSHIP AND TRAUMA

Citation: R v Black [2022] NSWDC 480
Court: District Court of New South Wales
Date: 25 August 2022
Judge: Haesler SC DCJ

Background

The offender was a passenger in a car driven by a co-offender, Cameron, when they lured a vulnerable man, who supplemented his unemployment benefits by collecting recyclables, into the vehicle under a false pretence. They drove him to an industrial area where Cameron produced a knife and assaulted him, demanding money. The offender then joined in, grabbing the victim around the neck while Cameron continued to punch him.

Over roughly two hours, the two men drove the victim to multiple locations, including his own residence, where they stole his phone and wallet. The offender used the victim's phone and MyGov credentials to apply for a government "corona loan" on the victim's behalf, and then withdrew $200 at an ATM after the funds were transferred. At one point the victim had a bag placed over his head and was forced to strip naked before being left alone in the car, from which he eventually escaped.

The offender pleaded guilty after arraignment to specially aggravated detention for advantage in company, occasioning actual bodily harm (s 86(3) Crimes Act 1900, maximum 25 years). He was also sentenced on a certificate matter for dishonestly obtaining a financial advantage by deception, and for breaching five Community Corrections Orders (CCOs), including orders relating to possession of knives and domestic violence.

  • What was the appropriate sentence for specially aggravated detention for advantage in company, taking into account the offender's role in a joint criminal enterprise and his personal background?
  • What weight should be given to a late guilty plea entered after arraignment?
  • How should breaches of multiple CCOs, including domestic violence and knife-related matters, be dealt with alongside the principal sentence?
  • How should the fraud offence (the "corona loan" deception) be sentenced in relation to the principal offence, to avoid double-counting?
  • Did special circumstances exist justifying a departure from the standard non-parole period ratio?

Decision

The court assessed the objective seriousness of the principal offence as significant. The detention lasted approximately two hours, involved threats to kill, a knife produced on multiple occasions, two offenders acting together, and a deliberate element of humiliation. The actual bodily harm inflicted was at the lower end of the scale, but the court emphasised this did not diminish the real threats, violence, and psychological harm visited upon the victim. The court noted that while Cameron was the more aggressive participant who wielded the knife more frequently, the offender's role as part of the joint criminal enterprise was only modestly lesser.

On the question of the late guilty plea, the court applied a 5% reduction to the indicative sentence of four years and six months, arriving at a head sentence of four years and three months. The late plea, entered after arraignment rather than at an early stage, confined the utilitarian discount available under s 25D(2)(c) of the Crimes (Sentencing Procedure) Act 1999.

The court found special circumstances justifying a longer parole period relative to the non-parole period, given the offender's significant personal background of trauma, disadvantaged upbringing, parental incarceration, and drug dependency. The court urged the State Parole Authority to consider the offender's transition through a residential drug rehabilitation facility, while noting that release remained entirely contingent on satisfying the Authority that it was in the interests of community safety.

For the fraud offence, the court made the nine-month sentence concurrent with the principal sentence to avoid double-counting, since the financial gain had already been factored into the assessment of the principal offence. For the CCO breaches, which included domestic violence matters and knife-related offences, an aggregate sentence of eight months was imposed to run before the principal sentence, reflecting the need for independent punishment of those breaches.

Orders Made

Breach of Community Corrections Orders:
- Breaches proven; s 5 imprisonment threshold crossed
- Aggregate sentence of 8 months, commencing 2 March 2021, expiring 1 November 2021
- Indicative component sentences: 3 months each for the two domestic violence matters; 1 month each for first-offence custody of knife matters; 3 months for subsequent custody of knife in public

Section 166 Certificate Matter (Dishonestly Obtain Financial Advantage by Deception):
- Convicted
- 9 months imprisonment, commencing 2 April 2021, expiring 1 January 2022
- Concurrent with the principal sentence

Count 1 (Take/Detain in Company with Intent to Get Advantage, Occasioning Actual Bodily Harm):
- Total sentence: 4 years 3 months
- Non-parole period: 2 years 6 months, commencing 2 April 2021
- Eligible for parole consideration: 1 October 2023
- Parole period: 1 year 9 months
- Sentence expires: 1 July 2025
- Special circumstances found
- Release contingent on State Parole Authority satisfaction that community safety is served

Key Takeaways

  • A late guilty plea entered after arraignment attracted only a 5% discount under s 25D(2)(c) of the Crimes (Sentencing Procedure) Act 1999, confirming that the timing of the plea directly limits the utilitarian value available to the offender.
  • Participation in a joint criminal enterprise does not automatically place co-offenders on equal footing: the District Court recognised that the offender's role was modestly lesser than that of the more violent co-offender, though it declined to draw a significant distinction given the offender's full participation throughout.
  • Where a financial element of an offence is already factored into the objective seriousness of the principal charge, a concurrent sentence for the related fraud offence is appropriate to avoid impermissible double-counting.
  • Breaches of CCOs, particularly those involving domestic violence and weapons, warranted independent punishment even where the breach had already been treated as a circumstance of aggravation on the principal offence, provided the court guarded against double-counting.
  • A background of profound disadvantage, including an interrupted upbringing, parental imprisonment, and entrenched substance dependency, was accepted as relevant to moral culpability and supported a finding of special circumstances, resulting in an extended parole period to facilitate rehabilitation.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 86(3), 192E(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 25D
- Criminal Procedure Act 1986 (NSW), s 166
- Crimes (Administration of Sentences) Act 1999 (NSW)

Cases:
- Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301
- R v Filipetti (Cameron) [2014] NSWDC 214