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District Court 7 June 2022

R v Elarja

[2022] NSWDC 738

Assault & violenceTheft & propertyTraffic & drivingPublic order & justice offences

Citation: R v Elarja [2022] NSWDC 738
Court: District Court of New South Wales
Date: 7 June 2022
Judge: M L Williams SC DCJ

Background

The offender, a 23-year-old man, appeared for sentence after pleading guilty to two offences arising from events on 23 and 24 December 2020. The first offence was aggravated assault with intent to take and drive a motor vehicle, causing actual bodily harm, under s 154C(2) of the Crimes Act 1900. The second was a police pursuit offence under s 51B of the same Act. A further charge of resisting or hindering a police officer was taken into account on a Form 1.

The victim had advertised a high-performance BMW M3 for sale online and arranged to meet a prospective buyer at a service station. The offender arrived disguised with a hooded jumper, hat, and face mask. After negotiating a price inside the car, he reversed at speed as the victim approached the driver's door, dragging and then flinging the victim approximately 20 metres onto concrete. The victim sustained serious head injuries, including a fractured parietal bone, subdural haematoma, and subarachnoid haemorrhage, and was hospitalised until 31 December 2020.

Shortly after midnight, police located the offender driving the stolen BMW at speeds estimated between 188 and 230 km/h on the Hume Highway. Police twice attempted to stop the vehicle and twice disengaged pursuit due to the danger posed. The offender was eventually arrested after resisting officers before complying when threatened with OC spray.

  • What aggregate sentence and non-parole period was appropriate, having regard to the objective seriousness of the offences and the standard non-parole period for the principal offence?
  • What weight should be given to the offender's guilty plea, attracting a 25% discount?
  • To what extent did the offender's documented psychiatric illness and drug history reduce his moral culpability?
  • Whether the offender's background constituted deprivation or disadvantage within the principles in Bugmy and Fernando?
  • Whether special circumstances existed justifying a variation of the standard ratio between non-parole period and head sentence?
  • What sentencing statistics and comparable decisions revealed about an appropriate sentence range?

Decision

The court assessed the carjacking offence as serious. The victim suffered significant and lasting physical harm, and the offender's conduct in luring the victim under false pretences, combined with his callous post-arrest comments minimising the harm caused, reflected considerable moral culpability. The police pursuit offences compounded the danger, with the offender reaching estimated speeds of up to 230 km/h in light to moderate traffic.

The court accepted that the offender had a well-documented psychiatric history, including a hospitalisation for psychosis in the context of heavy cannabis use in 2020. The consulting psychiatrist, Dr Gerald Chew, identified a causal connection between the psychiatric illness and the offending. This connection was accepted as a factor that modestly reduced moral culpability, and correspondingly lessened the weight to be given to general deterrence, retribution, and denunciation, consistent with the principles in Muldrock v The Queen (2011) 244 CLR 120 and DPP (Cth) v De La Rosa (2010) 79 NSWLR 1.

However, the court declined to find that the offender came from a deprived or disadvantaged background within the meaning given to those concepts in Bugmy v The Queen and R v Fernando. While there were some adverse childhood circumstances, they did not meet the threshold for that specific mitigating category.

The court found special circumstances, justifying a non-parole period proportionally shorter than the statutory default. The sentence commenced on 7 July 2021, a date agreed upon by the parties as appropriate when balancing questions of totality and accumulation with an earlier sentence imposed in May 2022 for unrelated offences committed in December 2021.

Orders Made

  • The offender was convicted of each offence.
  • Indicative sentence for the aggravated carjacking offence (H78209208 Seq 1): 3 years and 4 months, with an indicative non-parole period of 2 years and 1 month (after 25% guilty plea discount).
  • Indicative sentence for the police pursuit offence (H459331492 Seq 1), taking into account the Form 1 matter: 18 months (after 25% guilty plea discount).
  • Aggregate sentence of 4 years imprisonment, commencing 7 July 2021.
  • Non-parole period of 2 years and 3 months, expiring 6 October 2023.
  • Special circumstances found.
  • Licence disqualification of 4 years imposed in relation to the police pursuit offence.

Key Takeaways

  • A documented causal connection between a psychiatric illness and offending can modestly reduce an offender's moral culpability, and correspondingly lessen (though not eliminate) the weight given to general deterrence and denunciation in sentencing.
  • Adverse childhood circumstances, including parental substance abuse and parental separation, do not automatically constitute a "deprived background" within the meaning applied in Bugmy and Fernando; the court must assess whether those circumstances meet the specific threshold established by those authorities.
  • Under s 154C(2) of the Crimes Act 1900, the maximum penalty is 14 years imprisonment with a standard non-parole period of 5 years; the District Court here imposed an indicative sentence of 3 years and 4 months for the carjacking count after a 25% guilty plea discount, treating the offence as serious but assisted by subjective factors including mental illness.
  • Sentencing statistics drawn from the Judicial Information Research System (JIRS) were used as a broad guide only; the court examined three reported decisions involving the same offence category and treated them as informative rather than determinative.
  • A finding of special circumstances permits departure from the standard ratio between non-parole period and head sentence, and the District Court applied that finding here in light of the offender's rehabilitation prospects and the need for adequate supervision on release.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 154C(2), 51B, 546C
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 37

Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- Bugmy v The Queen [2013] HCA 27
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- Muldrock v The Queen (2011) 244 CLR 120
- R v Attard [2020] NSWDC 443
- R v Barker; R v Gibson [2006] NSWCCA 20
- R v Fernando (1992) 76 A Crim R 58
- R v Johnstone; R v Kelly Nelder [2020] NSWDC 152
- R v Nateghi [2019] NSWDC 815