Citation: R v Tran [2022] NSWDC 661
Court: District Court of New South Wales
Date: 28 June 2022
Judge: Buscombe DCJ
Background
The offender pleaded guilty to three offences arising from two separate series of criminal conduct in 2020 and 2021. The first involved an armed robbery attempt at Cabramatta in December 2020, where the offender entered a victim's car after arranging a meeting through a dating application, produced a large knife, and demanded money. The victim resisted and escaped without serious physical injury, though the offender subsequently sent abusive messages via the same application.
The second and third offences involved the same female victim, whom the offender had contacted through the dating application Tinder under a false name. Having earlier deceived her into providing her bank login credentials and stealing over $5,000 from her account, the offender arranged a meeting in May 2021 under the guise of repaying her. At that meeting he implied he was carrying a knife, took identifying cards and documents from her wallet, and attempted to transfer funds from her account.
Following that robbery, the offender conducted a sustained campaign of threatening messages over approximately two weeks demanding payment, including sending recordings of her home address obtained through associates. Two additional offences (obtaining property by deception and goods in custody) were placed on a Form 1 to be taken into account at sentencing on the demand with menaces charge.
Legal Issues
- What indicative and aggregate sentences were appropriate for three offences of assault with intent to rob while armed, robbery, and demanding property with menaces?
- How should the objective seriousness of each offence be assessed, including the use of weapons, the vulnerability of victims, and the sustained nature of the conduct?
- What weight should be given to subjective factors including the offender's age, background, and prospects of rehabilitation?
- How should the totality principle apply in fixing an aggregate sentence across the three offences?
Decision
Buscombe DCJ assessed the objective seriousness of each offence individually before turning to subjective considerations. The armed robbery attempt was treated as a serious instance of the offence given the use of a knife against a victim lured through deception, the physical contact made with the weapon, and the subsequent abusive messages. The robbery of the female victim was similarly grave, involving implied weapon use, the theft of identity documents, a threat referencing knowledge of her home address, and the exploitation of a pre-existing relationship built on deception.
The demand with menaces offence was regarded as serious and prolonged. The offender recruited associates to attend and photograph the victim's home and transmitted that recording to her as part of a sustained intimidation campaign over nearly two weeks. The Form 1 matters, including the original deception giving rise to the theft of over $5,000, were taken into account in fixing the indicative sentence for this charge.
On the subjective side, the court considered the offender's age and personal circumstances, including factors relevant to the principles in Bugmy v R concerning the weight to be given to background disadvantage. His guilty pleas were taken into account as an indication of some acceptance of responsibility and for the utilitarian benefit they provided.
Applying the totality principle, the court fixed an aggregate sentence that reflected the overall criminality without simply adding the indicative terms. The court noted the sentence ran from the date of the offender's remand into custody.
Orders Made
- Indicative sentence for assault with intent to rob while armed: 2 years and 6 months imprisonment
- Indicative sentence for robbery: 1 year and 6 months imprisonment
- Indicative sentence for demand money with menaces (including Form 1 matters): 12 months imprisonment
- Aggregate sentence: 3 years imprisonment with a non-parole period of 1 year and 10 months
- Sentence commences 16 June 2021 (corrected under the slip rule on 16 December 2022) and expires 15 July 2024
- Non-parole period expires 15 May 2023
Key Takeaways
- The District Court treated weapon use, victim vulnerability, and sustained post-offence conduct (including threatening messages and surveillance of a victim's home) as significant factors elevating the objective seriousness of each charge.
- Where multiple offences span distinct events and different victims, the totality principle requires the court to step back from the sum of the indicative terms and impose an aggregate sentence that reflects the overall criminality without being crushing.
- Under the Form 1 procedure, related offences not separately charged (here, obtaining property by deception and goods in custody) are acknowledged by the offender and taken into account in sentencing on the principal charge, increasing the indicative term for that offence.
- Guilty pleas operated in the offender's favour both as a utilitarian benefit to the justice system and as evidence of some acceptance of responsibility, consistent with established NSW sentencing principles.
- Principles from Bugmy v R remain applicable in the District Court: background disadvantage and personal circumstances retain relevance to the weight given to subjective factors, even for serious violent offences.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 94(a) (robbery), s 97(1) (assault with intent to rob while armed), s 249K(1)(a) (demanding property with menaces)
Cases:
- Bugmy v R [2013] HCA 37; 249 CLR 571
- Bullock v R [2016] NSWCCA 131
- R v Henry [1999] NSWCCA 111
- Millwood v R [2012] NSWCCA 21