AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 28 July 2023

R v Faour

[2023] NSWDC 284

Assault & violenceTheft & propertyFirearms & weapons
CRIME SENTENCING 5 % DISCOUNT FOR LATE PLEA OFFENDER’S SUBJECTIVE BACKGROUND BUGMY PRINCIPLES DE LA ROSA CONSIDERATIONS

Citation: R v Faour [2023] NSWDC 284
Court: District Court of New South Wales
Date: 28 July 2023
Judge(s): Fitzsimmons SC DCJ

Background

The offender pleaded guilty to assault with intent to rob while armed with a dangerous weapon, contrary to s 97(2) of the Crimes Act 1900 (NSW). The plea was entered on the second day of a jury trial, during the victim's evidence in chief, making it a very late guilty plea attracting only a 5% discount.

The offence occurred in the early hours of 8 May 2022 near a hotel in Kogarah. The offender had observed two men winning money on poker machines during the evening. He returned home, changed his clothing to disguise his appearance, and followed the two men into a pedestrian underpass. He then approached them, physically grabbed one victim, and pointed a plastic firearm at him while demanding money. Police were called by the second man and arrived shortly afterwards. The offender was identified from hotel CCTV and arrested approximately ten days later.

The offender had a lengthy criminal history dating back to 1983, including prior weapons offences. Psychological evidence presented at sentencing documented a background of childhood sexual abuse, significant trauma, longstanding drug dependence (including methamphetamine), and several diagnosed psychiatric conditions.

  • What was the appropriate sentence for assault with intent to rob while armed with a dangerous weapon, given the objective seriousness of the offence?
  • What weight should be given to the offender's psychiatric disorders and traumatic background under Bugmy v R (2013) 249 CLR 571?
  • How did the principles in DPP v De La Rosa [2010] NSWCCA 94 apply to sentencing where mental health impairs moral culpability?
  • What discount applied for a guilty plea entered on the second day of trial?
  • Were there special circumstances justifying a reduction in the standard non-parole period ratio?

Decision

The court accepted that the offence was objectively serious. The offender had premeditated the attack by returning home to disguise himself, used an imitation firearm to place the victim in fear, and made threats intended to discourage the victims from calling police. These features reflected deliberate planning rather than impulsive conduct.

On subjective matters, the court considered the psychological report in detail. The offender's background included childhood sexual abuse, social isolation, early drug exposure, and the deaths of close family members. His diagnosed psychiatric conditions and long-term methamphetamine dependence were accepted as relevant to his moral culpability. The court applied the Bugmy principles, acknowledging that the effects of profound disadvantage do not diminish with repeated offending. However, the court also noted the De La Rosa framework: mental health was relevant to culpability but did not remove the need for general and specific deterrence.

The court treated the offender's expressions of remorse with considerable scepticism, noting he had lied during his post-arrest interview and had not previously taken up rehabilitation opportunities offered under a prior suspended sentence. Prospects of rehabilitation were found to be limited, though not absent, given the psychological report's findings.

The court found special circumstances, citing the offender's mental health issues and limited rehabilitation prospects that could be more readily addressed in the community than in custody. The standard non-parole period ratio was accordingly reduced.

Orders Made

  • The offender is convicted of assault with intent to rob armed with a dangerous weapon (s 97(2) Crimes Act 1900 (NSW)).
  • A sentence of 3 years and 6 months imprisonment, commencing 5 June 2023 and expiring 4 December 2026.
  • A non-parole period of 2 years, expiring 4 June 2025.
  • Earliest eligible release to parole: 4 June 2025.

Key Takeaways

  • The District Court confirmed that a guilty plea entered on the second day of trial, during the victim's evidence in chief, attracts only a 5% utilitarian discount under s 25D(2)(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Under the Bugmy principles, the effects of childhood trauma, deprivation, and disadvantage remain relevant to moral culpability at sentencing regardless of prior criminal history, and their significance does not diminish simply because the offender has reoffended.
  • Applying the De La Rosa framework, psychiatric disorder and mental health history can reduce moral culpability but do not displace the sentencing purposes of general and specific deterrence, particularly for serious armed offences.
  • Special circumstances may be found where mental health issues and rehabilitation prospects are better addressed in the community post-release, justifying a departure from the standard non-parole period ratio even where rehabilitation prospects are limited rather than strong.
  • Prior failure to engage with court-mandated rehabilitation programs, and evidence of dishonesty after arrest, were treated as factors diminishing the weight of the offender's expressed remorse and assessed prospects of rehabilitation.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) s 97(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A(2)(m), 25D(2)(c)

Cases
- Bugmy v R (2013) 249 CLR 571
- DPP v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 94
- Chung v R [2017] NSWCCA 48
- Imbornone v R [2017] NSWCCA 144
- Ingrey v R [2016] NSWCCA 31
- Lloyd v R [2022] NSWCCA 18
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- R v Israil [2002] NSWCCA 255
- R v Majstrovic [2000] NSWCCA 420
- R v Qutami [2001] NSWCCA 353