Citation: R v Akil [2024] NSWDC 460
Court: District Court of New South Wales
Date: 25 July 2024
Judge: D Barrow SC DCJ
Background
The offender, a 26-year-old man, pleaded guilty to armed robbery contrary to s 97(1) of the Crimes Act 1900 (NSW). On the night of 12–13 November 2022, he befriended the victim at a Rockdale hotel, and the two men spent the evening visiting various venues. The offender later retrieved a knife, held it to the victim's throat, and repeatedly demanded money, also punching the victim to the face, head and body. The victim suffered bruising, swelling, and a laceration to his chest.
The offender took $1,200 in cash. He was arrested on 17 November 2022 and had been in custody since that date. At the time of the offence, he was on parole, which was subsequently revoked.
The offender entered his guilty plea on 4 June 2024, after a trial date had been fixed for 17 June 2024. The parties agreed he was entitled to a 10% discount for the utilitarian value of the late plea.
Legal Issues
- What sentence was appropriate for an armed robbery with a knife, assessed against the Henry guideline judgment?
- How did the offender's extensive criminal history, commission of the offence on parole, and escalating pattern of offending bear on sentence?
- Whether special circumstances existed justifying a variation from the standard non-parole period ratio, given the offender's rehabilitation needs.
- How totality principles applied given the overlap between remand time and the balance of the revoked parole period.
Decision
Judge Barrow assessed the offending as more serious than the typical Henry guideline armed robbery. The level of physical violence, including repeated punching and use of the knife to scratch and lacerate the victim, exceeded what the guideline judgment contemplated. The $1,200 stolen was not a "relatively small amount," and the offender's criminal record was worse than that envisaged in the guideline. The offence was, however, largely opportunistic and involved limited planning.
The offender's criminal history, stretching from 2016, comprised numerous dishonesty offences linked to a long-standing drug addiction. The breach of parole report confirmed a deteriorating picture in the months before the offence: increased drug use, poor supervision compliance, and anti-social associations. The court noted that commission of the offence while on parole was an aggravating factor on sentence, though it did not increase the objective seriousness of the offending itself.
On subjective matters, the court accepted that the offender's moral culpability was somewhat reduced by his addiction, which began in early adolescence, and by the adverse circumstances of his upbringing. His remorse and expressed desire for rehabilitation were noted, but the court was unable to find that his rehabilitation prospects were good or that the risk of re-offending was low. General and specific deterrence, denunciation, and community protection all carried significant weight, particularly given the escalation in the nature of his offending.
The court found special circumstances, given the offender's urgent need for intensive rehabilitation and the benefit of extended supervision in the community. The sentence was backdated to 20 February 2023, with totality principles kept in mind. The only appropriate disposition was full-time imprisonment.
Orders Made
- The offender was sentenced to a total term of 4 years' imprisonment.
- Non-parole period of 2 years and 3 months, commencing 20 February 2023.
- Balance of term: 1 year and 9 months.
- Earliest release date: 19 May 2025.
Key Takeaways
- The District Court applied the Henry guideline judgment to an armed robbery with a knife, but found the offending more serious than the guideline case because the physical violence was greater and the offender's criminal history was worse.
- A 10% discount for guilty plea was applied in accordance with s 25D of the Crimes (Sentencing Procedure) Act 1999 (NSW), the late timing of the plea limiting the discount to that floor.
- Commission of an offence while on parole constitutes an aggravating factor on sentence, though it does not elevate the objective seriousness of the conduct itself.
- Special circumstances were established where the offender had an urgent and intensive need for rehabilitation and where extended post-release supervision would best serve community protection.
- Where remand time overlaps with the serving of a revoked parole balance, the sentencing court retains a discretion over the commencement date of any fresh sentence, guided by totality principles.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 25D
Cases:
- R v Henry [1999] 46 NSWLR 346 (guideline judgment for armed robbery)