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District Court 15 December 2022

R v Jirjnazi

[2022] NSWDC 744

Assault & violenceTheft & property
CRIMINAL SENTENCE OFFENDER “THE WRONG HOUSE” VIOLENCE, TWO YOUNG CHILDREN PRESENT DISCOUNT FOR PLEA

Citation: R v Jirjnazi [2022] NSWDC 744
Court: District Court of New South Wales
Date: 15 December 2022
Judge: King SC DCJ

Background

The offender, aged 18 at the time, participated with at least two unknown co-offenders in a premeditated home invasion at a residential property in Georges Hall on 7 August 2020. The group arrived in a vehicle with partially taped number plates, wore dark hooded clothing and gloves, and forced their way into the home. The occupant, a young mother home alone with two small children, was knocked to the floor when the offender forced open the front door.

Once inside, the co-offender produced a knife, threatened the complainant, and demanded tobacco and "white boxes," having apparently targeted the wrong address. After searching the garage and realising their mistake, both men left. The offender apologised to the complainant before departing.

The offender was not identified immediately. His DNA was recovered from the interior door handle, and he was arrested nearly eleven months later. He was eventually committed for trial, and pleaded guilty in the District Court in August 2022 when two charges were consolidated into a single count of aggravated break and enter and commit a serious indictable offence, namely assault with intent to rob while armed with an offensive weapon, contrary to s 112(2) of the Crimes Act 1900.

  • What sentence was appropriate for a serious, premeditated home invasion committed by a then-18-year-old with limited prior criminal history?
  • What weight should the offender's youth, background, and subjective circumstances carry in mitigation?
  • Whether the offender's apology to the victim during the offence constituted genuine remorse or was simply an acknowledgment of the mistake made in targeting the wrong premises.
  • What discount applied for the guilty plea, given it was entered relatively late in proceedings.
  • Whether a full-time custodial sentence was appropriate, or whether an Intensive Correction Order (ICO) could be justified given the gravity of the offending.

Decision

King SC DCJ described the offending as a serious home invasion that was plainly premeditated and planned. The concealed number plates, dark disguising clothing, weapons, and coordinated arrival all pointed to prior organisation. The violence used to gain entry, the knife presented by the co-offender, and the distress caused to two young children were all significant aggravating features. The court noted that the joint criminal enterprise meant the offender bore responsibility for the conduct of his co-offenders, even where specific acts were carried out by the unknown co-offender.

The court rejected the submission that the offender's apology to the victim during the offence demonstrated genuine remorse. The apology was characterised as an acknowledgment that the offenders had targeted the wrong address, not as an expression of genuine contrition for the conduct itself. The court did, however, accept that the offender showed meaningful remorse in the period following his arrest, supported by evidence of reflection and changed behaviour.

His Honour gave careful consideration to the offender's youth and Indigenous background. Applying principles from Fernando and Bugmy, the court acknowledged a difficult upbringing, exposure to substance misuse, and the well-established sentencing principle that youthful offenders have greater capacity for rehabilitation. These factors carried real mitigatory weight. The offending was also committed on bail, which was a statutory aggravating factor.

After applying a 10% discount for the guilty plea (agreed by both parties), and taking into account 96 days of pre-sentence custody, the court ultimately imposed an Intensive Correction Order rather than a full-time custodial sentence. His Honour expressed reservations about whether this outcome would survive scrutiny in the Court of Criminal Appeal, describing it as a lenient result driven substantially by the offender's youth, prospects for rehabilitation, stable circumstances, and the support structures he had developed. The ICO included a condition prohibiting the use of prohibited drugs or prescription medications not prescribed to the offender.

Orders Made

• An Intensive Correction Order (ICO) imposed with a condition that the offender is not to use prohibited drugs and/or prescription drugs not prescribed for him

Note: The judgment records that an Intensive Correction Order was imposed with drug-related conditions, and that 96 days of pre-sentence custody were taken into account. The precise duration and full terms of the ICO were not reproduced in the text provided.

Key Takeaways

  • The District Court treated the mistaken targeting of the wrong property as irrelevant to the objective seriousness of the offending. A planned home invasion carried out with weapons and causing physical and psychological harm to the occupants remained a serious offence regardless of whether the intended target was different.

  • An apology made during the commission of an offence does not automatically establish remorse. The court distinguished between an acknowledgment of a tactical mistake and genuine contrition for the criminal conduct itself.

  • Under the Fernando and Bugmy principles, an offender's Indigenous background and childhood exposure to disadvantage and substance misuse are relevant to the sentencing exercise, though they do not displace the objective gravity of the conduct.

  • Committing an offence while on bail is a statutory aggravating factor under the Crimes (Sentencing Procedure) Act 1999 and weighed against the offender, even where other mitigating factors were present.

  • Youth and demonstrated rehabilitation prospects can, in combination, justify a non-custodial disposition even for offences of significant objective seriousness. His Honour's frank acknowledgment that the outcome may not have survived appellate scrutiny reflects the tension between general deterrence and the principle that rehabilitation carries particular weight for young offenders.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- BP v R [2010] 201 A Crim R 379
- Bugmy v The Queen [2013] HCA 37
- R v Fernando (1992) 76 A Crim R 58
- Pulitano v R [2010] NSWCCA 45
- R v Groombridge (unreported, 30 September 1990, NSWCCA)
- R v Henry [1999] 46 NSWLR 346
- R v Pullen [2018] NSWCCA 264
- R v Speeding [2001] NSWCCA 105