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District Court 15 November 2023

R v Turkmani

[2023] NSWDC 500

Theft & propertyFirearms & weaponsPublic order & justice offences

Citation: R v Turkmani [2023] NSWDC 500
Court: District Court of New South Wales
Date: 15 November 2023
Judge: Scotting DCJ

Background

The offender was a 43-year-old man who, between July 2020 and May 2021, participated in a series of commercial break-and-enters across metropolitan Sydney and the Central Coast. Police established Strike Force Leewood to investigate the offending and identified the offender and two co-offenders through telephone intercepts, listening devices, and physical surveillance. The targets included IGA supermarkets, a newsagency, a bottle shop, and a tobacconist.

The offences involved forced entry in the early hours of the morning, theft of tobacco products, cigarettes, alcohol, and cash, and the use of stolen number plates and vehicles to facilitate the offending. On one occasion, when police attempted to lawfully detain the offender and his co-offenders, an offensive weapon was used to prevent that detention.

The offender pleaded guilty in the Local Court to seven principal charges and asked the court to take five further offences into account on Form 1 documents. The proceedings were adjourned on two occasions: first, to allow the offender to complete a residential rehabilitation program, and second, to give him the opportunity to demonstrate sustained reintegration and abstinence in the community.

  • What aggregate sentence was appropriate for seven offences including multiple break-and-enter charges and use of an offensive weapon to prevent lawful detention?
  • What discount applied to sentence by reason of the early guilty plea?
  • What weight should be given to rehabilitation, and in particular to evidence of completed residential rehabilitation and community reintegration?
  • Whether the sentence should be served by way of full-time custody or an Intensive Corrections Order (ICO).

Decision

Scotting DCJ applied a 25% discount to the notional sentences on account of the guilty pleas entered in the Local Court, in accordance with section 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999. The court took the Form 1 offences into account in accordance with the guideline judgment in Attorney General's Application No 1 of 2002.

On the question of rehabilitation, the court gave significant weight to the offender's completion of residential rehabilitation and his subsequent period of demonstrated stability in the community. The court found this rehabilitation constituted a protective factor for the community, citing R v Zamagias [2002] NSWCA 17.

The court determined an appropriate aggregate sentence of three years imprisonment, reduced to two years and six months to account for pre-sentence custody. On the question of how the sentence should be served, the court considered two options: return to full-time custody or an ICO. Applying the principle in Mandranis v R [2021] NSWCCA 97, the court was satisfied that community protection would be best achieved by the offender serving the sentence in the community under an ICO, given his very low assessed risk and demonstrated rehabilitation.

Orders Made

  • Aggregate sentence of 2 years and 6 months imprisonment, commencing 15 November 2023 and expiring 14 May 2026.
  • Sentence to be served by way of an Intensive Corrections Order (ICO) pursuant to section 7(1) of the Crimes (Sentencing Procedure) Act 1999.
  • Standard ICO conditions apply: no offending, and submission to supervision by a Community Corrections Officer.
  • Additional condition: the offender must not take any restricted or prohibited drug unless prescribed by a medical practitioner.
  • The offender to report to St Leonards Community Corrections on or before 4pm on 22 November 2023.
  • The offender to attend the Registry to confirm residential address for service of the order.

Key Takeaways

  • The District Court confirmed that demonstrated rehabilitation, including completion of residential rehabilitation and sustained community reintegration, can constitute a meaningful protective factor when assessing the appropriate mode of serving a custodial sentence.
  • Under section 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999, a guilty plea entered in the Local Court attracts a 25% discount on sentence.
  • An ICO is a sentence of imprisonment, not an alternative to imprisonment. The District Court emphasised that an ICO still significantly restricts an offender's freedom and reflects the seriousness of the conduct.
  • Where the sentencing court must choose between full-time custody and an ICO, Mandranis v R [2021] NSWCCA 97 provides that community protection is the central consideration in determining which option is preferable.
  • Adverse factual findings at sentencing require proof beyond reasonable doubt, while findings favourable to the offender need only be established on the balance of probabilities, consistent with R v Olbrich (1999) 199 CLR 270.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33B(1)(a), 112(1)(a), 112(2), 117, 154A(1)(a), 189
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 7(1), 11, 21A, 25D(2)(a), 66

Cases
- Attorney General's Application No 1 of 2002 (2002) 56 NSWLR 147
- Mandranis v R [2021] NSWCCA 97
- R v Miller [2015] NSWCCA 86
- R v Olbrich (1999) 199 CLR 270
- R v Ponfield (1999) 48 NSWLR 327
- R v Zamagias [2002] NSWCA 17