AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 31 May 2024

R v Fellowes

[2024] NSWDC 311

Assault & violenceTheft & property

Citation: R v Fellowes [2024] NSWDC 311
Court: District Court of New South Wales
Date: 31 May 2024
Judge: Haesler SC DCJ

Background

The offender, a 26-year-old man with a significant custodial history, faced four charges arising from an incident at Werri Beach on 29 October 2022. The incident occurred just eight days after he had been sentenced to imprisonment subject to an Intensive Correction Order (ICO). Three men were sitting in a parked car watching the ocean when the offender and a co-offender, Craig, approached the vehicle.

Craig confronted and robbed the driver. While Craig acted at the driver's window, the offender approached the rear of the vehicle and became involved with the passengers, harassing them, demanding they empty their pockets, and physically grabbing one passenger in an attempt to take his phone. A front seat passenger experienced fear throughout the incident.

The offender initially pleaded not guilty to all four counts. A jury trial commenced, and after the principal complainant in the first count completed his evidence-in-chief, the offender sought an adjournment to consult with his lawyers. He then pleaded guilty mid-trial to two counts of assault with intent to rob while in company. The Crown directed no further proceedings on the robbery in company charge (Count 1) and discontinued the intimidation charge (Count 4), which was instead placed on a Form 1 to be taken into account on sentence.

  • What was the appropriate sentence for two counts of assault with intent to rob while in company, in light of the late guilty pleas?
  • How should the offender's role in a joint criminal enterprise be assessed where he was not the principal offender in relation to one count?
  • What discount applied to a guilty plea entered after a trial had commenced and after the principal complainant had given evidence-in-chief?
  • How should parity with the co-offender Craig's sentence be maintained, given Craig's earlier plea, different role, and different subjective circumstances?
  • Did special circumstances exist to justify a variation in the standard non-parole period ratio?
  • How should the breach of an ICO be weighed as an aggravating factor?

Decision

Guilty plea discount. The guilty pleas were entered late, after the trial had commenced and following the complainant's evidence-in-chief. Haesler SC DCJ found the pleas retained some utilitarian value and applied a 5% reduction to the otherwise appropriate sentences. The judge was careful to ensure that the mechanics of accumulating individual sentences did not erode that discount.

Objective seriousness. Both counts arose under section 97(1) of the Crimes Act 1900 (NSW), which carries a maximum of 20 years imprisonment. The judge assessed the offences as low-level within the range of section 97(1) matters. While there was violence and three men were present at the vehicle, the incident was spontaneous and lacked factors that commonly elevate such offences to greater seriousness. Nonetheless, the judge accepted that only a custodial sentence was appropriate. The guideline judgment in R v Henry and the maximum penalty both served as reference points in calibrating the sentence.

Role and joint criminal enterprise. For Count 2, the offender's participation was as a party to a joint criminal enterprise rather than as the person who directly confronted the victim. The judge noted this could justify a different penalty from that imposed on the principal offender for that count. For Count 3, the offender was the person who directly confronted the victim. The Form 1 intimidation offence, taken into account on Count 3, required greater weight to be given to personal deterrence and community protection, consistent with the Attorney General's guideline application.

Parity and subjective factors. Haesler SC DCJ had regard to the sentence imposed on Craig by Judge Baker SC in November 2023. Craig had received a 25% discount for an early guilty plea and had subjective factors including childhood trauma, demonstrated remorse, and insight. The offender here received only a 5% discount and had an aggravating breach of an ICO. However, the judge gave full weight to the offender's own subjective circumstances, including functional illiteracy, risk of institutionalisation, and the difficulties his lawyers faced in obtaining instructions from him during the trial. Special circumstances were found, producing a longer-than-standard parole period to allow for supervision and rehabilitation.

Orders Made

  • Count 2 (assault with intent to rob while in company): individual sentence of 3 years and 4 months.
  • Count 3 (assault with intent to rob while in company, with Form 1 intimidation offence taken into account): individual sentence of 3 years and 9 months.
  • Aggregate sentence: 4 years imprisonment.
  • Minimum (non-parole) period: 2 years and 4 months, reflecting a finding of special circumstances.
  • Sentence to commence: 8 June 2023.
  • Eligible for parole consideration: 7 October 2025.
  • Parole period: 1 year and 8 months, commencing 8 October 2025 and expiring 7 June 2027.

Key Takeaways

  • A guilty plea entered after a trial has commenced and the principal complainant has given evidence-in-chief attracts only a 5% utilitarian discount, not the higher discounts available for early pleas.
  • Where an offender participates in a joint criminal enterprise but is not the principal offender for a particular count, that lesser role is a legitimate basis for calibrating the sentence differently from that imposed on the more directly involved co-offender.
  • The District Court confirmed that being in company is an element of the section 97(1) offence that justifies the higher maximum penalty, not a separate aggravating circumstance, though the weight of numbers remains relevant to assessing objective seriousness.
  • Parity requires a sentencing court to have regard to sentences imposed on co-offenders, but meaningful differences in role, plea timing, and subjective circumstances can justify a different outcome without offending the parity principle.
  • Functional illiteracy and the risk of institutionalisation are recognised subjective considerations in sentencing, and a finding of special circumstances can extend the parole period to give an offender a longer period of supervised reintegration into the community.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(1) (assault with intent to rob while in company)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 30 (victim impact statements), s 42B (guideline judgments), and Form 1 provisions

Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 (guideline on Form 1 and deterrence)
- Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 (parity principle)
- R v Craig (District Court (NSW), 1 November 2023, unreported) (co-offender's sentence, parity)
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; (1999) 106 A Crim R 149 (guideline judgment for robbery offences)