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District Court 1 September 2023

R v Kariolakis

[2023] NSWDC 350

Assault & violenceTheft & propertyFirearms & weapons
CRIME S ENTENCE MULTIPLE OFFENCES STEAL FROM THE PERSON ROBBERY ARMED WITH OFFENSIVE WEAPON DEAL WITH PROPERTY PROCEEDS OF CRIME.

Citation: R v Kariolakis [2023] NSWDC 350
Court: District Court of New South Wales
Date: 1 September 2023
Judge: Mahony SC DCJ

Background

The offender, a man born in April 1979, pleaded guilty to three serious offences committed across a single afternoon in Darlinghurst and Surry Hills on 29 July 2022. Within the space of approximately three hours, he entered three separate premises and used a screwdriver to threaten or intimidate staff while demanding cash.

The first incident, at a venue known as "The Penthouse", involved the offender producing a screwdriver and demanding cash from a receptionist. He then grabbed her mobile phone, although he returned it shortly after when she followed him onto the street. The second incident, at a shop called "The Tool Shed", involved the offender walking behind the counter with the screwdriver pointed at a salesperson, demanding he open the till, and removing between $450 and $500 in cash. The third incident, at "AdultXXX City", involved the offender shoving a salesperson while holding the screwdriver above shoulder height with the metal tip pointed at him, then grabbing approximately $475 from the till.

Police arrested the offender about two minutes after the final robbery, while he was seated at a poker machine in a nearby hotel. He had $257.10 cash on him and the screwdriver in his possession. He was remanded in custody from the date of arrest and entered an early guilty plea in the Local Court.

  • What was the appropriate head sentence and non-parole period for three offences of assault with intent to rob or robbery, each armed with an offensive weapon, under s 97(1) of the Crimes Act 1900?
  • What weight should be given to the offender's early guilty plea, his criminal history, his personal circumstances, and any mental health considerations?
  • How should the totality principle apply when multiple offences of similar character occurred within a single day?
  • Whether special circumstances existed to justify varying the statutory ratio between the non-parole period and the balance of the sentence.

Decision

His Honour found the offending was objectively serious. The screwdriver constituted an "offensive weapon" within s 97(1), and each incident involved deliberate, planned conduct directed at vulnerable workers in small retail or hospitality premises. The fear caused to each victim was significant, even where the weapon was only exposed briefly.

The offender's criminal history was extensive, including prior convictions for supply of prohibited drugs and, relevantly, prior robbery-related offending. His Honour took this history into account as relevant to the assessment of moral culpability and prospects of rehabilitation, though consistent with principle the history was not treated as an aggravating factor in a way that punished the offender twice for past conduct.

In mitigation, His Honour accepted the utilitarian benefit of the early guilty plea, and had regard to evidence that the offender appeared mentally unwell at the time of the offending and during the ERISP. These factors, together with the offender's personal circumstances, operated to reduce what would otherwise have been a heavier sentence.

Applying the totality principle, His Honour found that because all offences occurred on the same day within a short window of time, a significant degree of concurrency in the aggregate sentence was appropriate. Special circumstances were found to exist, based on the offender's need for ongoing rehabilitation, the impact of the COVID-19 pandemic on the prison population, and the need for a lengthy period of supervised parole on his return to the community. This justified a non-parole period shorter than the statutory default of half the head sentence.

Orders Made

  • The offender was convicted of:
  • Assault with intent to rob armed with an offensive weapon (Sequence 5, s 97(1) Crimes Act 1900)
  • Robbery armed with an offensive weapon (Sequence 2, s 97(1) Crimes Act 1900)
  • Robbery armed with an offensive weapon (Sequence 3, s 97(1) Crimes Act 1900)
  • An aggregate sentence of 3 years and 6 months imprisonment was imposed.
  • A non-parole period of 1 year and 9 months was set, commencing 29 July 2022 and expiring 28 April 2024.
  • The balance of the sentence runs from 29 April 2024 to 28 January 2026.
  • Two Form 1 offences (deal with proceeds of crime less than $100,000; steal from the person less than $2,000) were taken into account on sentence.

Key Takeaways

  • The District Court confirmed that a screwdriver qualifies as an "offensive weapon" for the purposes of s 97(1) of the Crimes Act 1900, and that even brief exposure of such a weapon is sufficient to establish the required elements of assault with intent to rob or robbery while armed.
  • Where multiple offences of similar character are committed within a single day in a continuous course of conduct, the totality principle may justify substantial concurrency in the aggregate sentence, even when each individual offence is of significant objective seriousness.
  • Special circumstances warranting a departure from the statutory non-parole period ratio can be established by a combination of factors, including the offender's rehabilitation needs, the conditions in custody arising from the COVID-19 pandemic, and the desirability of extended post-release supervision.
  • An early guilty plea continues to attract meaningful utilitarian discount even where the offender's criminal history is substantial and the evidence against them is strong.
  • A significant prior criminal record, including prior offences of a similar nature, informs but does not dominate the sentencing exercise; consistent with Veen v R [No. 2], it does not permit the offender to be sentenced beyond what is proportionate to the current offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 94(b), 97(1), 193C(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Veen v R [No. 2] (1988) 164 CLR 465
- R v Henry (1999) 46 NSWLR 346
- R v Speeding (2001) 121 A Crim R 426
- Cahyadi v R (2007) 168 A Crim R 41
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1
- BT v R [2012] NSWCCA 128
- R v Van Ryn [2016] NSWCCA 1
- Chung v R [2017] NSWCCA 48
- DS v R [2017] NSWCCA 37
- R v Dong [2021] NSWCCA 82