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District Court 20 March 2025

R v Ismal

[2025] NSWDC 79

Fraud & dishonesty
SENTENCING IMPRISONMENT DEMAND PROPERTY IN COMPANY WITH MENACES

Citation: R v Ismal [2025] NSWDC 79
Court: District Court of New South Wales
Date: 20 March 2025
Judge(s): Noman SC DCJ

Background

The offender, a 32-year-old man, was sentenced as a co-offender alongside two previously sentenced men for a single charge of demanding property in company with menaces, contrary to s 99(2) of the Crimes Act 1900 (NSW). The offence arose from a personal dispute involving a mutual acquaintance. The offender had met the victim, then aged 41, while both were in gaol in 2018.

In May 2023, the offender orchestrated a planned confrontation at which the victim was surrounded by at least three other men in two cars. The offender participated by phone, demanding $20,000 and threatening serious harm to the victim if he did not pay. Co-offenders present at the scene reinforced those threats in person, with one also threatening the victim's family. The victim managed to retreat into his home before any payment was made.

The offender was arrested in August 2023. Phone records, CCTV footage, and a Sentencing Assessment Report all informed the sentencing proceedings. The court had separately sentenced the two principal co-offenders before dealing with the instigator.

  • What sentence was appropriate for a person who instigated a planned, group-based extortion demand but was not physically present at the scene?
  • How should the offender's role be characterised relative to the co-offenders who were physically present?
  • What weight should be given to the early plea, prior criminal history, breach of conditional liberty, and special circumstances in fixing the sentence?
  • Whether the sentence should be adjusted to account for time already served, including a concurrent period from a separate custodial term.

Decision

The court found that the offender was the instigator of the offence and that his role was important and enduring, despite him being present only as a voice on a telephone. He recruited others to provide the physical threat, directed the confrontation in real time, and indicated familiarity with the victim's home. The court rejected the offender's suggestion that a higher-ranking person had recruited him, finding insufficient evidence to support that claim even on the lower civil standard.

The court assessed the offending as a relatively serious example within the offence category, placing it modestly above the range submitted by defence counsel. The planned nature of the offending, the involvement of multiple participants, threats directed at both the victim and his family, and the offender's position as instigator all elevated the seriousness. The absence of actual physical violence and the limited duration of the confrontation were acknowledged, but did not substantially reduce the assessment.

The offender's extensive criminal history, including weapons, drug, and personal violence offences, disentitled him to leniency. The offending occurred in breach of both bail and a community corrections order, which the court treated as an aggravating factor. His conduct in custody, including assaults on other inmates and a drug-related penalty, further weighed against him. The early plea attracted a 25% reduction in sentence.

A finding of special circumstances was made, justified by the offender's need for extended supervision to address entrenched substance abuse and to develop pro-social connections. This reduced the non-parole period ratio to 60% of the total term. The court allowed one month of concurrency to account for a separate three-month custodial sentence served during the same period.

Orders Made

  • The offender was convicted of one count of demanding property in company with menaces, contrary to s 99(2) of the Crimes Act 1900 (NSW).
  • A term of imprisonment of 3 years and 4 months was imposed, with a non-parole period of 2 years.
  • The sentence commenced on 4 September 2023.
  • The offender became eligible for release to parole on 3 September 2025.
  • The sentence expires on 3 January 2027.
  • An Apprehended Personal Violence Order (APVO) in favour of the victim was noted.

Key Takeaways

  • An offender who instigates a group extortion demand and directs it by phone in real time can be found to have played an "important and enduring role" even without physical presence at the scene, with that role assessed as more culpable than those of the co-offenders who physically attended.
  • Where an offender claims to have been recruited by a higher-ranking participant, the sentencing court requires evidence to establish that claim, even to the lesser civil standard; an unsubstantiated assertion will not be accepted in mitigation.
  • Breach of conditional liberty in the form of both bail and a community corrections order at the time of offending operates as an aggravating factor, reflecting a violation of the trust placed in the offender by the court.
  • A finding of special circumstances, justified by entrenched substance abuse and the need for structured rehabilitation, can reduce the ratio of non-parole period to total sentence below the statutory default, here to 60%.
  • In assessing parity across co-offenders, the District Court distinguished between the instigator and those acting under direction, and between offenders with and without conditional liberty at the time, resulting in different sentence structures for each participant.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 99(2) (demanding property in company with menaces; maximum penalty 14 years imprisonment)

Cases:
No cases were cited in the judgment.