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District Court 16 May 2025

R v King

[2025] NSWDC 149

Assault & violenceTheft & propertyPublic order & justice offences
AGGRAVATED BREAK AND ENTER ROBBERY IN COMPANY STEALING ASSAULT OCCASIONING ACTUAL BODILY HARM JOINT CRIMINAL ENTERPRISE LEGAL AND MORAL CULPABILITY

Citation: R v King [2025] NSWDC 149
Court: District Court of New South Wales
Date: 16 May 2025
Judge: Colefax SC DCJ

Background

The offender, a 32-year-old man, appeared for sentencing following guilty pleas to five principal offences. Four arose from a home invasion at a residential property in Blacktown on 2 April 2022, carried out together with three co-offenders: a 17-year-old (JD), and two adults aged 21 and 31. The fifth offence was an assault occasioning actual bodily harm committed at Parklea Correctional Centre on 6 June 2023, while the offender was on remand.

The home invasion involved the group breaking into the property wearing masks, armed with a knife and a weapon described as a miniature scythe. Three residents were present. The co-offenders threatened and robbed the residents at knifepoint, punching one victim and holding the blade to another's forehead. The offender remained largely in the loungeroom during the robbery, communicating with co-offenders and receiving stolen property. The group also stole a motor vehicle from the premises.

The offender's four Blacktown offences comprised aggravated break and enter (maximum 20 years), two counts of robbery in company (maximum 20 years each), and stealing a motor vehicle (maximum 10 years). A related matter of being carried in a conveyance without the owner's consent was taken into account on a Form 1.

  • How to assess the offender's legal and moral culpability within a joint criminal enterprise, given his peripheral physical role but active participation through communication and receipt of stolen goods
  • Whether parity required the sentence to align with those already imposed on three co-offenders (aggregate terms of 5 years for the juvenile, and 6 years each for two adult co-offenders)
  • Whether the offender's circumstances in custody, specifically ongoing segregation linked to past association with an outlaw motorcycle gang, constituted special circumstances warranting a variation to the standard non-parole period ratio
  • How to treat the in-custody assault, including whether the sentence for that offence should run consecutively to the aggregate sentence for the Blacktown offending

Decision

The District Court accepted that the offender's physical role during the home invasion was more limited than some co-offenders: he stayed near the door, did not personally threaten or assault the residents in their bedrooms, and did not carry weapons. However, the court found beyond reasonable doubt that he received stolen property during the offence and agreed that he was communicating with co-offenders throughout. His participation in the joint criminal enterprise was unambiguous, and his culpability, while somewhat lower than the most active participants, remained serious.

Parity was a central consideration. The court observed that the highly desirable practice of sentencing co-offenders together before the same judge had not occurred here, the three co-offenders having been sentenced by three different judges on three separate occasions. The court examined each co-offender's sentence and noted the offender's relatively lower culpability compared to the adult co-offenders, supporting an aggregate sentence somewhat below their 6-year terms.

For the four Blacktown offences (including the Form 1 matter), the court imposed an aggregate sentence of 5 years 8 months, commencing from the date of arrest on 10 February 2023. The court found special circumstances on the basis of hardship in custody arising from the offender's effective segregation, linked to his past outlaw motorcycle gang associations. This justified varying the ratio of the non-parole period to the head sentence beyond the statutory norm. A non-parole period of 3 years 8 months was fixed, expiring 9 October 2026, with a balance of term of 2 years expiring 9 October 2028.

For the in-custody assault, the court considered a pre-discount starting point of 4 years. After applying a 25 per cent discount for the guilty plea, the sentence was 3 years. The court declined to direct that this sentence be served concurrently, finding no persuasive basis to do so under s 56(2) of the Crimes (Sentencing Procedure) Act 1999. The assault sentence therefore runs fully consecutively. A further finding of special circumstances applied to this sentence, producing a non-parole period of 1 year 11 months from 10 October 2026 (expiring 9 September 2028) and a balance of 1 year 1 month (expiring 9 October 2029).

Orders Made

  • Aggregate sentence of 5 years 8 months imprisonment for the four Blacktown principal offences (with the Form 1 matter certified), commencing 10 February 2023
  • Non-parole period of 3 years 8 months, expiring 9 October 2026; balance of term of 2 years, expiring 9 October 2028
  • Sentence of 3 years imprisonment for the in-custody assault (after 25% guilty plea discount), to be served wholly consecutively
  • Non-parole period of 1 year 11 months for the assault sentence, commencing 10 October 2026, expiring 9 September 2028; balance of term of 1 year 1 month, expiring 9 October 2029
  • Direction that the psychological report of Ms De Santa Brigida (27 September 2024) accompany the warrant
  • Special circumstances found in relation to both sentences on the basis of hardship arising from ongoing segregation in custody

Key Takeaways

  • Participation in a joint criminal enterprise does not require physical presence at the most violent acts. The District Court treated the offender as a full participant despite him remaining near the exit, on the basis of his communication with co-offenders and receipt of stolen goods during the offence.
  • Parity principles apply even where co-offenders have been sentenced separately, by different judges, and at different times. The court was required to reconcile its sentence with three prior sentences and expressly noted the problems created when co-offenders are not dealt with together by the same judge.
  • Where co-offenders are sentenced by different judges, the sentencing court must still engage carefully with the objective and subjective features of each to achieve consistency. The court identified the offender's somewhat lower culpability as justifying a sentence below the 6-year terms imposed on the adult co-offenders.
  • Hardship in custody can constitute special circumstances under New South Wales sentencing law. Here, effective ongoing segregation resulting from past outlaw motorcycle gang associations provided the basis to extend the proportion of the sentence spent on parole.
  • Under s 56 of the Crimes (Sentencing Procedure) Act 1999, a sentence for an offence committed in custody runs consecutively by default. The court declined to exercise its discretion to make the assault sentence concurrent, finding no persuasive reason to depart from the statutory position.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): ss 59(1), 97(1), 112(2), 154A(1)(b), 154F
- Crimes (Sentencing Procedure) Act 1999 (NSW): ss 56, 56(2)

Cases
- Bugmy v The Queen [2013] HCA 37
- DPP (Cth) v De La Rosa [2010] NSWCCA 194