Citation: R v Derbas [2023] NSWDC 62
Court: District Court of New South Wales
Date: 17 March 2023
Judge: Mahony SC DCJ
Background
The offender, born in February 1989, pleaded guilty to aggravated entry of a dwelling knowing a person was present (s 111(2) of the Crimes Act 1900) and robbery (s 94(a) of the Crimes Act 1900). The offences arose from events on 17 April 2021, when the offender entered the home of a woman he knew in Bankstown without authority, demanded money, physically assaulted her, and stole cash, bank cards, and other property from her bags before fleeing in a motor vehicle.
The offender was arrested two days later at a petrol station in Chester Hill, where police found the victim's belongings and a knife concealed in his underwear. At the time of arrest he was driving while disqualified. Both driving while disqualified (a second-or-subsequent offence) and possession of the knife in a public place were also before the court for sentencing.
Critically, the offending occurred while the offender was on parole for a 2020 conviction for dishonestly obtaining property by deception. His parole was revoked on the same day the home invasion occurred. He had been in custody continuously since his arrest on 19 April 2021.
Legal Issues
- What aggregate sentence was appropriate for the aggravated home invasion and robbery, having regard to the objective seriousness of the offences, the offender's criminal history, and the principles of totality and proportionality?
- What weight should be given to the offender's troubled background, psychological profile, and personal circumstances as mitigating factors?
- What discount was appropriate for the guilty pleas?
- How should the driving while disqualified offence (on a s 166 certificate) and the knife possession charge (on a Form 1) be dealt with?
Decision
The court assessed the objective seriousness of the index offences as high. The home invasion was a sustained and violent intrusion into the victim's home by a person known to her. The physical assault was serious: the offender pinned the victim against a door, placed his forearm across her throat, punched her in the head, straddled her, and choked her, while making a death threat. His Honour found that the robbery flowed directly from this conduct.
The offender's criminal history was extensive and relevant. It commenced in the Children's Court in 2004 and included prior convictions for aggravated break and enter, dishonesty offences, and multiple driving while disqualified matters. The Breach of Parole Report described his response to supervision as "superficial" and assessed him as posing an increased risk to community safety. The fact that the offending occurred on parole was a significant aggravating factor.
On the mitigating side, the court accepted evidence of the offender's deeply troubled upbringing, including exposure to domestic violence, sexual assault, substance abuse from an early age, and abuse during juvenile detention. A psychologist's report confirmed the presence of psychological conditions arising from these experiences. His Honour acknowledged these matters, though their weight was moderated by the offender's persistent failure to engage with rehabilitation supports directed by his parole conditions.
The court applied the totality principle, as described in R v Cahyadi [2007] NSWCCA 1, in arriving at an aggregate sentence. For the driving while disqualified offence, the court imposed a conviction but no further penalty under s 10A of the Crimes (Sentencing and Procedure) Act 1999, and certified that the knife possession matter had been taken into account on sentence for Count 1.
Orders Made
- Conviction entered for Count 1: aggravated entry of a dwelling knowing a person present (s 111(2), Crimes Act 1900).
- Conviction entered for Count 2: robbery (s 94(a), Crimes Act 1900).
- Aggregate sentence of imprisonment for 3 years and 6 months, commencing 19 April 2021.
- Non-parole period of 2 years and 3 months, commencing 19 April 2021 and expiring 18 July 2023.
- Balance of term: 1 year and 3 months, concluding 18 October 2024.
- For driving while disqualified (s 166 certificate): conviction recorded, no further penalty imposed under s 10A of the Crimes (Sentencing and Procedure) Act 1999.
- Knife possession (Form 1, Sequence 4): taken into account on sentence for Count 1.
- Two further charges on the s 166 certificate withdrawn.
Key Takeaways
- The District Court treated the combination of a violent home invasion, sustained physical assault, death threat, and theft from a known victim as objectively serious offending warranting a substantial custodial sentence.
- Offending while on parole operated as a significant aggravating factor, and the offender's parole was revoked on the very day the home invasion occurred.
- A history of failure to engage with court-directed rehabilitation, documented in the Breach of Parole Report, reduced the weight available to subjective mitigating factors, even where genuine hardship and trauma were established.
- Under the totality principle confirmed in R v Cahyadi, an aggregate sentence must reflect the overall criminality across related offences without resulting in a combined term disproportionate to the total conduct.
- Where a driving offence on a s 166 certificate is dealt with alongside more serious indictable matters, a court may impose a conviction with no further penalty under s 10A of the Crimes (Sentencing and Procedure) Act 1999 to avoid a disproportionate cumulative result.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 94(a), 111(2)
- Crimes (Sentencing and Procedure) Act 1999 (NSW), s 10A
- Road Transport Act 2013 (NSW), s 54(1)(a)
- Summary Offences Act 1988 (NSW), s 11C(1)
Cases
- R v Cahyadi [2007] NSWCCA 1
- Chung v R [2017] NSWCCA 48
- DPP (Cth) v De La Rosa (2010) 78 NSWLR 1; [2010] NSWCCA 194
- Harris v R [2013] NSWCCA 296
- Jackson v R [2010] NSWCCA 162
- R v Henry (1999) 46 NSWLR 346
- Smith v R [2013] NSWCCA 209