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District Court 11 March 2022

R v Nasrallah

[2022] NSWDC 54

Assault & violenceTheft & propertyPublic order & justice offences
JOINT CRIMINAL ENTERPRISE PARITY APPLICATION OF BUGMY PRINCIPLES.

Citation: R v Nasrallah [2022] NSWDC 54
Court: District Court of New South Wales
Date: 11 March 2022
Judge: Mahony SC DCJ

Background

The offender, a 23-year-old male, was sentenced for aggravated assault with intent to rob and recklessly inflict actual bodily harm, contrary to s 95(1) of the Crimes Act 1900. The offence carries a maximum penalty of 20 years imprisonment and has no standard non-parole period. The offending occurred in the early hours of 7 November 2020.

The offender and his co-offender (his brother-in-law) drove to Lakemba train station, where a lone victim was waiting on a platform. The offender approached the victim wearing disposable gloves and armed with a steel claw hammer, demanded money, and struck the victim on the head with the hammer when the victim denied having any. The victim fled bleeding and sought refuge in a nearby restaurant. Both men were apprehended shortly afterwards, with police finding two steel claw hammers in the car.

The co-offender had been sentenced by the same judge in October 2021 to three years and six months imprisonment with a non-parole period of two years. The present sentencing hearing addressed how the offender's personal circumstances and criminal history compared with those of his co-offender, and what sentence parity required.

  • What was the appropriate sentence for the offender's role in the joint criminal enterprise, noting that he personally struck the victim with the hammer?
  • How should the court apply parity principles, given the differences in criminal history and personal circumstances between the offender and his co-offender?
  • How should the court apply the principles from Bugmy v The Queen (2013) 249 CLR 571, concerning the mitigating effect of childhood deprivation on moral culpability?
  • What weight should be given to the offender's background, including long-term poly-substance abuse, unemployment, lack of education, and difficult upbringing?
  • Whether special circumstances existed to justify varying the statutory ratio between the head sentence and non-parole period.

Decision

The court accepted that the offender bore a higher degree of direct physical culpability than the co-offender, as it was the offender who struck the victim with the hammer. However, the court found that this increased culpability was offset by the mitigating effect of the offender's childhood deprivation under the Bugmy principles, a finding that had not been available to the co-offender. The court therefore arrived at the same headline sentence for both men.

The Bugmy principles recognise that a background of profound disadvantage, including exposure to violence, substance abuse, and deprivation in childhood, can reduce an offender's moral culpability. The court applied this reasoning to the offender's history of leaving school in Year 9, long-term unemployment, and entrenched poly-substance abuse. The offending was described in the Sentencing Assessment Report as an escalation, being the first instance of serious violence in the offender's history.

Parity was a significant consideration. The co-offender had a Form 1 matter (resist arrest) taken into account, which contributed to some accumulation on his sentence. The offender had a more extensive criminal history and was also on conditional liberty at the time of the offending, having been subject to both a Community Correction Order and an Intensive Correction Order. After balancing these differences, the court concluded that equal sentences were appropriate.

The court found special circumstances warranting a departure from the standard statutory ratio between the head sentence and non-parole period. The offender's entrenched drug dependency, the need for extended supervision on release for rehabilitation and relapse prevention, and the particularly onerous conditions of custody during the COVID-19 pandemic were all cited. The court also recommended the offender be considered for the Young Offenders Program administered by Corrective Services.

Orders Made

  • The offender was convicted of aggravated assault with intent to rob and recklessly inflict actual bodily harm under s 95(1) of the Crimes Act 1900.
  • Sentenced to a non-parole period of two years imprisonment, commencing 7 November 2020 and expiring 6 November 2022.
  • Balance of term of one year and six months, commencing 7 November 2022 and expiring 6 May 2024.
  • Parole eligibility date: 6 November 2022.
  • Recommendation that the offender be considered for the Young Offenders Program administered by Corrective Services.

Key Takeaways

  • The District Court confirmed that Bugmy principles retain their mitigating force even where an offender has a more extensive criminal history than a co-offender, provided the deprivation finding is properly established on the evidence.
  • Parity in sentencing operates as a principle of equal justice: material differences between co-offenders, including criminal history, personal circumstances, and the specific roles played in the offending, must be identified and weighed before equal or divergent sentences are imposed.
  • Where one co-offender physically inflicts the relevant harm and another does not, that difference in direct culpability is a relevant but not determinative factor; it may be counterbalanced by other mitigating matters personal to the more culpable offender.
  • Special circumstances sufficient to vary the statutory non-parole period ratio may be established by a combination of entrenched substance dependency, the rehabilitative demands of supervision on release, and the hardship of custody under COVID-19 conditions.
  • Offending while subject to conditional liberty orders (here, both a Community Correction Order and an Intensive Correction Order) remains a significant aggravating factor under the Crimes (Sentencing Procedure) Act 1999.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 58, 95(1), 114
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Filippou v The Queen [2015] HCA 22
- R v Kilic [2016] HCA 48
- The Queen v De Simoni (1981) 147 CLR 383
- R v Henry & Ors (1996) 46 NSWLR 346
- Azzi v R [2008] NSWCCA 169
- Barbieri v R [2016] NSWCCA 295
- BP v R [2010] NSWCCA 159
- DPP (Cth) v Saadieh [2021] NSWSC 196
- Georgopolous v R [2010] NSWCCA 246
- Hoskins v R [2021] NSWCCA 169
- Lloyd v R [2022] NSWCCA 18
- Moore v R [2005] NSWCCA 407
- R v Boroxam (Unreported, 28 September 1995, NSWCCA)
- R v Malupo [2021] NSWDC 586
- R v Sotheren [2001] NSWCCA 425
- Tammer-Spence v R [2013] NSWCCA 297
- Williams v R [2022] NSWCCA 15
- WM v R [2020] NSWCCA 96