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District Court 1 August 2025

R v Kobeissi

[2025] NSWDC 269

Assault & violenceTheft & propertyPublic order & justice offences
CRIME SENTENCE

Citation: R v Kobeissi [2025] NSWDC 269
Court: District Court of New South Wales
Date: 1 August 2025
Judge: Colefax SC DCJ

Background

The offender appeared for sentence on two principal charges: aggravated break and enter a dwelling house and commit a serious indictable offence (robbery in company, with the circumstance of aggravation being knowledge that persons were present), and driving a conveyance without the owner's consent. A further break and enter offence involving larceny was taken into account on a Form 1 (a procedural mechanism allowing a court to consider additional related offences when imposing sentence, without recording separate convictions for them).

The offending occurred over three days in March 2023 in Liverpool. On 3 March, the offender and a co-offender broke into a home unit and stole numerous items while the occupants were absent. On 4 March, the offender and two co-offenders returned to the same unit in the early hours of the morning. This time, one of the occupants was home and asleep. The group broke in again, and the offender personally threatened the occupant, attempted to grab his phone, raised a clenched fist toward his face, and ultimately took the phone. A co-offender threatened the occupant with scissors, though the court accepted the offender bore no criminal responsibility for that conduct. On 4 to 5 March, the offender took a vehicle belonging to a third party without consent, which was later involved in a crash.

The offender had two co-offenders: one had already been sentenced by a different judge, and the other had pleaded guilty but had not yet been sentenced as at the date of this judgment.

  • What sentence was appropriate for the principal charge of aggravated break and enter with robbery in company, taking into account the Form 1 matter?
  • What sentence was appropriate for the driving offence?
  • Whether parity with the co-offender already sentenced was a meaningful consideration, given the differences in agreed facts between them.
  • How the offender's background, including matters giving rise to Bugmy considerations (the principle that an offender's deprived upbringing may reduce moral culpability), affected the sentencing exercise.
  • What discount applied for early guilty pleas, and how totality should be addressed through an aggregate sentence.

Decision

Colefax SC DCJ determined that parity with the sentence imposed on the co-offender Sineva by Hanley SC DCJ was not a meaningful guide. The Crown had produced a document identifying the material differences between the offender's agreed facts and those of each co-offender, and those differences were sufficiently significant to make comparison with Sineva's sentence of limited utility.

The judge found that the offender's background gave rise to Bugmy considerations, reducing his moral culpability to some extent and moderating the full application of general deterrence. However, specific deterrence was fully engaged, as was the need to encourage rehabilitation. No sentence other than full-time imprisonment was appropriate for either the principal offence or the driving charge.

An early guilty plea discount of 25 per cent was applied to each indicative sentence. The indicative sentence for the principal offence (sequence 4, with sequence 3 on the Form 1) was five years before discount, reducing to three years and nine months. For the driving offence, the indicative sentence was twelve months before discount, reducing to nine months. These produced an aggregate sentence of four years imprisonment.

In fixing the non-parole period, the judge took care to avoid a crushing sentence while ensuring a meaningful period of post-release supervision on parole to best support rehabilitation. Special circumstances were found, with a non-parole period of two years fixed from 14 May 2025 (expiring 13 May 2027) and a balance of term of two years to follow (expiring 13 May 2029). The start date was affected by the interaction with other periods of imprisonment the offender was already serving or subject to.

Orders Made

  • Aggregate sentence of four years imprisonment imposed for sequences 4 and 5.
  • Non-parole period of two years, commencing 14 May 2025 and expiring 13 May 2027.
  • Balance of term of two years, commencing 14 May 2027 and expiring 13 May 2029.
  • A copy of the report of Mr McLean dated 3 December 2024 (part of Exhibit 1) to accompany the warrant.

Key Takeaways

  • Where co-offenders are sentenced on materially different agreed facts, parity with a sentence already imposed on one co-offender may not be a meaningful consideration in fixing the sentence of another.
  • Bugmy principles applied to moderate general deterrence where the offender's deprived background reduced his moral culpability, though specific deterrence remained fully engaged.
  • A 25 per cent discount for early guilty pleas was applied to each indicative sentence underpinning the aggregate term.
  • Under the aggregate sentencing approach, the interaction between the new sentence and pre-existing periods of imprisonment affected the start date, requiring careful attention to totality and the avoidance of a crushing sentence.
  • A non-parole period shorter than the standard ratio (resulting from a finding of special circumstances) was justified by the importance of a meaningful period of supervised parole to support rehabilitation.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 112(2) (aggravated break and enter), 154A(1)(b) (drive conveyance without owner's consent)

Cases:
- Bugmy v R (2013) 249 CLR 571 (High Court: consideration of deprived background in sentencing)
- R v Sineva, unreported, 22 October 2024, Hanley SC DCJ (sentence of co-offender Sineva)