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District Court 11 February 2025

R v Garang Yai

[2025] NSWDC 12

Assault & violenceDrugsTheft & propertyFirearms & weapons

Citation: R v Garang Yai [2025] NSWDC 12
Court: District Court of New South Wales
Date: 11 February 2025
Judge: Noman SC DCJ

Background

The offender committed a series of offences on 13 January 2024, separated by approximately 40 minutes. In the first incident at around 6.15pm, he and a co-offender approached a 30-year-old man standing outside a restaurant. The offender was armed with a 34-centimetre knife and struggled with the victim in an attempt to take his shoulder bag. The bag was not taken, and the offender fled. His DNA was later found on the dropped knife, and he admitted his involvement when arrested.

Around 40 minutes later, the offender and the same co-offender approached a 34-year-old man in Lidcombe. Both attacked the victim, punching him to the head and kicking him. The offender took the victim's satchel bag during the assault, and the co-offender pushed the victim's motorcycle over. The attack lasted approximately six and a half minutes. The victim sustained minor injuries.

When arrested on 25 January 2024, police also found 14.61 grams of cannabis concealed on the offender's person. The offender had a prior criminal history including goods in custody, drug offences, custody of a knife, and being armed with intent. He was subject to an Intensive Correction Order (ICO) at the time of the index offences, which he breached by committing them.

  • What sentences were appropriate for assault with intent to rob whilst armed with an offensive weapon (s 97(1) Crimes Act 1900), affray (s 93C(1) Crimes Act 1900), assault (s 61 Crimes Act 1900), and possession of a prohibited drug (s 10(1) Drug Misuse and Trafficking Act 1985)?
  • How should the court apply the De Simoni principle where the agreed facts for the affray charge appeared to support a more serious offence?
  • What weight should be given to early guilty pleas, prior criminal history, breach of conditional liberty, substance abuse disorder, background trauma, and disputed remorse?
  • How should totality be applied given a concurrent sentence arising from revocation of the breached ICO?
  • Whether special circumstances existed to vary the statutory non-parole period ratio.

Decision

The De Simoni issue. The agreed facts for the second incident, as originally framed, appeared to support a charge of robbery rather than affray under s 93C(1). His Honour observed that the negotiated plea had not been accompanied by appropriately modified facts. Applying the De Simoni principle (which prohibits sentencing for conduct that would constitute a more serious offence than the one charged), the court declined to proceed on the unmodified facts and instead confined its sentencing to conduct consistent with affray and assault, expressly finding no intent to steal for the purposes of that offence.

Objective seriousness. The robbery offence was assessed as moderately serious. The offender was armed with a knife, acted in company, and the victim was not in a vulnerable category. Nothing was stolen, and the offender entered an early plea. The affray was characterised as a less serious example of the provision, though actual violence was involved rather than merely a threat. The assault was moderately serious, also involving actual violence committed in company. The drug possession was treated as low-level.

Subjective factors. The court accepted that the offender had experienced trauma arising from exposure to civil unrest in Sudan and time as a refugee, and that he had a substance abuse disorder at the time of offending. However, the court did not consider this potential causal connection to reduce his moral culpability. The offender's account of the offending was inconsistent with the agreed facts, and the court declined to accept any unsworn hearsay version. The court found no genuine remorse, despite the guilty pleas, noting the unreliability of the offender's explanations. The Sentencing Assessment Report placed the offender at medium-high risk of reoffending, a finding the court accepted.

Sentencing approach. Each sentence was reduced by 25% to reflect early guilty pleas entered in the Local Court. The court found special circumstances warranting a variation to the statutory non-parole period ratio, given the offender's need for extended supervision and support upon release. The drug possession offence was dealt with under s 10A of the Crimes (Sentencing Procedure) Act 1999, meaning a conviction was recorded but no further penalty imposed. An aggregate sentence was imposed for the remaining offences, with minimal accumulation applied to account for the pre-existing sentence imposed after ICO revocation.

Orders Made

  • Convicted on all charges.
  • Possession of prohibited drug: convicted under s 10A, no further penalty imposed.
  • Aggregate term of imprisonment of 4 years and 1 month for the remaining offences, with a non-parole period of 2 years and 5 months.
  • Sentence to commence 25 March 2024.
  • Eligible for release to parole: 24 August 2026.
  • Sentence term to expire: 24 April 2028.
  • Non-parole period set at approximately 59% of total term, reflecting a finding of special circumstances.

Key Takeaways

  • Where agreed facts on a negotiated plea describe conduct supporting a more serious offence than the one charged, the De Simoni principle requires the court to modify or disregard those facts rather than sentence on the more serious conduct, even if no formal amendment is made to the charge sheet.
  • A guilty plea does not, by itself, establish genuine remorse. The District Court found that an offender's implausible or inconsistent account of the offending can undermine any claim to remorse, even where pleas were entered at an early stage.
  • Background trauma and a diagnosed substance abuse disorder are recognised as relevant subjective factors, but the court confirmed they do not automatically diminish an offender's moral culpability, particularly where the proposed causal connection to the offending is tenuous.
  • Breach of an ICO by committing the index offences is an aggravating circumstance in sentencing, but when the pre-existing sentence arising from that revocation is already being served, only minimal accumulation is required in the interests of totality.
  • Special circumstances justifying a lower non-parole period ratio may be found where an offender requires extended post-release supervision and rehabilitative support, particularly where reports identify significant risk factors and limited coping skills.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61, 93C(1), 97(1)
- Drug Misuse and Trafficking Act 1985 (NSW), s 10(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A

Cases
- R v Henry (1999) 46 NSWLR 346 (guideline judgment for armed robbery)
- R v De Simoni (1981) 147 CLR 383 (prohibition on sentencing for a more serious uncharged offence)