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District Court 14 October 2022

R v Daniel

[2022] NSWDC 729

Assault & violenceTheft & propertyFirearms & weapons
CRIME ROBBERY ARMED WITH OFFENSIVE WEAPON RELEVANT FACTORS ON SENTENCE VICTIM IMPACT EARLY GUILTY PLEA DRUG USE

Citation: R v Daniel [2022] NSWDC 729
Court: District Court of New South Wales
Date: 14 October 2022
Judge: Haesler SC DCJ

Background

The offender, a 43-year-old man with no prior criminal history, committed a series of armed robberies and related offences across Western Sydney and the Southern Highlands over approximately three weeks in March and April 2021. He had previously lived a law-abiding life, maintained steady employment, and raised a family. The court accepted that pandemic-related stressors, combined with a history of childhood trauma, contributed to his taking up methylamphetamine, which was the catalyst for the offending.

The offences spanned six separate matters and involved eleven victims at multiple locations, including newsagencies, McDonald's restaurants, a brothel, a hotel, and a roadside robbery. Weapons used included a machete, a pink-handled knife, and what appeared to be a shortened double-barrel shotgun (or imitation). The court noted that all eleven victims were left terrified and were presumed to have suffered trauma, even though no Victim Impact Statements were before the court.

The offender pleaded guilty in the Local Court and maintained those pleas at sentence. The proceedings were conducted as an ex tempore revised sentence.

  • What aggregate sentence was appropriate for six matters for sentence (and multiple Form 1 matters) involving serious armed robbery and related offences?
  • What weight should be given to the offender's early guilty plea under s 25D of the Crimes (Sentencing Procedure) Act 1999?
  • How should the principles of totality and the need to avoid a crushing sentence apply when structuring an aggregate sentence across many serious offences?
  • Was there a basis for finding special circumstances to adjust the ratio of the non-parole period to the balance of the term?
  • To what extent could the offender's drug use, history of trauma, and subjective circumstances mitigate the objective seriousness of the offending?

Decision

The court found that the objective seriousness of the offending was high. The crimes were committed against multiple vulnerable victims in service industry settings, involved the deployment of bladed weapons and what appeared to be a firearm, and included explicit threats of serious violence. His Honour noted that, while the offending was poorly planned and irrational in several respects, those features reflected the influence of methylamphetamine and actually increased the risk to victims rather than reducing culpability.

The court accepted the offender's subjective case to a degree. His lack of prior convictions, early guilty pleas, history of childhood trauma, and genuine remorse were all acknowledged. However, his Honour was clear that drug use could not mitigate where the offender himself accepted it heightened the danger to victims. A 25% reduction was applied across all indicated sentences to reflect the utilitarian value of the guilty pleas entered in the Local Court.

In structuring the aggregate sentence, the court applied totality principles, including the principle against imposing a crushing sentence, while also recognising the need to reflect the multiplicity and seriousness of the offending. A substantial finding of special circumstances was made, resulting in a longer balance of term relative to the non-parole period than would otherwise apply under the standard ratio. This was intended to provide an extended period of supervision on parole to support the offender's rehabilitation and reintegration.

The court emphasised that the sentencing purposes of denunciation, victim vindication, and general deterrence were central to the outcome. His Honour noted that offences of this nature cause considerable community concern and that sentencing courts bear an obligation to affirm the dignity of each victim of violence.

Orders Made

Western Sydney Offences (each sentence reflecting a 25% guilty plea discount):

  • Sequence 2: Robbery armed with offensive weapon, Wetherill Park (with Form 1 matter) — 3 years 4 months
  • Sequence 3: Robbery armed with offensive weapon, Mount Annan — 3 years
  • Sequence 4: Assault with intent to rob while armed with dangerous weapon, Arndell Park (with Form 1 matter) — 3 years 9 months

Wallacia Hotel and Mount Keira Offences:

  • Sequence 5: Specially aggravated break and enter and commit serious indictable offence, Wallacia Hotel (with Form 1 matters; carries standard non-parole period) — 6 years 9 months, non-parole period 4 years 4 months
  • Robbery while armed with dangerous weapon, Mt Keira (victim 1, with Form 1 matter) — 4 years 6 months
  • Robbery while armed with dangerous weapon, Mt Keira (victim 2) — 3 years 9 months

Aggregate sentence: 10 years 6 months imprisonment, commencing 15 April 2021.
Non-parole period: Expires 14 October 2027.
Balance of term: 4 years, commencing 15 October 2027 and expiring 14 October 2031.
Special circumstances: Substantial finding made; extended balance of term reflects this.
Parole: No recommendation made; release to be determined by the State Parole Authority subject to community safety considerations.

Key Takeaways

  • An offender's methamphetamine use at the time of offending does not automatically operate as a mitigating factor, particularly where, as the District Court found here, it increased the danger posed to victims by impairing rational decision-making.
  • A 25% reduction for guilty plea utilitarian value was applied consistently across all matters, with the court expressly noting the importance of not eroding those discounts when formulating the aggregate sentence.
  • Where an offender commits numerous serious offences in a short period, the principles of totality and the avoidance of a crushing sentence require an aggregate sentence that reflects the overall criminality without simply accumulating individual terms.
  • A substantial finding of special circumstances was warranted on these facts, given the offender's significant rehabilitation needs, history of trauma, and the importance of supervised reintegration after a lengthy period in custody.
  • Sentencing for multiple armed robbery offences serves multiple concurrent purposes: vindicating the dignity of each individual victim, expressing community disapproval, and providing general deterrence, even where the offender otherwise presents sympathetic subjective circumstances.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 97(1), 97(2), 112(2)(3), 154C(2), 195(1)(a), 195(1A)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25D, Form 1
- Firearms Act 1996 (NSW)

Cases:
- Afu v R [2017] NSWCCA 246
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2013] NSWCCA 115; (2002) 56 NSWLR 146
- Cahyadi v R (2007) 168 A Crim R 41
- DPP C'th v Beattie [2017] NSWCCA 301
- Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Mill v The Queen (1988) 166 CLR 59
- Moodie v R [2020] NSWCCA 160
- Nasrallah v R [2021] NSWCCA 207
- Nguyen v The Queen [2016] HCA 17
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- R v Gavel [2014] NSWCCA 56
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
- R v Herring (1956) 73 WN (NSW) 203
- R v MAK [2006] NSWCCA 381
- R v MJB [2014] NSWCCA 195
- R v Simpson [2001] NSWCCA 534