Citation: R v Fawaz [2026] NSWDC 216
Court: District Court of New South Wales
Date: 9 February 2026
Judge: Noman SC DCJ
Background
The offender was sentenced for one count of aggravated take or detain a person with intent to commit a serious indictable offence, namely robbery in company, contrary to section 86(2) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is 20 years imprisonment. The offender pleaded guilty at an early stage and received a 25% discount on sentence.
The offending arose from a coordinated criminal operation targeting a tobacconist warehouse in Botany on the night of 16 July 2022. The operation involved four offenders in total, two of whom remain unidentified. One victim was ambushed outside the warehouse by other offenders and detained in a van. The offender joined the enterprise at a later point, entering the warehouse with two others and confronting a second victim who was working alone inside.
Once inside the warehouse, the offender and two co-offenders, all dressed in black with face masks, punched the victim in the face, cable-tied his hands and ankles, dragged him to shelving, tied him there, and placed a bag over his head. One offender carried an item the victim perceived to be a firearm, though the court could not determine whether it was a real or replica firearm. The victim's phone, wallet, cash, and bank card were stolen, as was a safe belonging to the warehouse owner. Police arrived at 10:53pm, interrupting the robbery before it could be fully completed.
Legal Issues
- What was the objective seriousness of the offence, having regard to the offender's specific role within a joint criminal enterprise?
- Whether the sentence should be served by way of full-time imprisonment or an Intensive Correction Order (ICO).
- Whether special circumstances existed warranting a departure from the standard ratio between the non-parole period and the head sentence.
Decision
Objective Seriousness
The court assessed the offending as involving meaningful planning: the offenders coordinated roles, wore matching dark clothing and face masks, and the offender knew to conceal himself outside the warehouse in advance. Although the court could not precisely determine when the offender joined the enterprise, his participation in the warehouse entry was active and integral. The court found the roles of the three offenders who entered the warehouse were not markedly different from one another. The known co-offender who remained in the van with the earlier-detained victim occupied a distinct role.
The court noted mitigating factors in the circumstances of the offence itself: the detention was of limited duration (no more than 23 minutes), the persons were physically present throughout, and the intended robbery in company did not proceed due to police attendance. Some personal items were stolen. The perceived presence of a firearm was taken into account, though the court could not determine whether it was genuine or a replica.
Full-time Imprisonment vs. ICO
The court rejected the submission that an Intensive Correction Order was appropriate, despite the defence pointing to the offender's compliance with previous parole, only one minor offence since the index offending, low-level bail breaches, and statistical data on ICO usage for this offence type. The court found that an ICO did not adequately address the seriousness of the offending and would not better serve community safety. The court also found no basis to conclude the offender was more likely to engage with rehabilitation under an ICO than under a full-time custodial sentence.
Special Circumstances
The court found special circumstances warranting a significant variation from the standard statutory ratio between the non-parole period and the total sentence. The offender's PTSD, rooted in previous custodial experiences, meant a return to custody carried particular detriment. The court also identified that the offender would require substantial support and independent supervision upon release, available through Community Corrections. The offender's mother was acknowledged as a significant personal support, though one that had not previously been sufficient to prevent reoffending.
Orders Made
- The offender was convicted.
- Sentenced to 1 year and 9 months imprisonment, with a non-parole period of 7 months.
- Sentence backdated to commence 10 July 2025 to account for pre-sentence custody.
- Non-parole period expired on 9 February 2026; the offender was released to parole immediately upon sentencing.
- The offender was directed to report to Community Corrections at Sutherland by phone or in person no later than 4:00pm on 9 February 2026, to commence engagement with a supervision plan as proposed in the Sentencing Assessment Report.
Key Takeaways
- Participation in a joint criminal enterprise at the warehouse level, where roles between co-offenders inside the building were not markedly different, resulted in the offender being held liable for the collective conduct of those with whom he acted.
- An ICO was refused notwithstanding that the head sentence fell within the range permitting that order; the District Court held that the seriousness of the offending and community safety considerations outweighed submissions based on prior parole compliance and offence statistics.
- Where a defendant's PTSD arises directly from prior custodial experience, that consideration can support a substantial departure from the standard non-parole ratio, particularly where extended post-release supervision is warranted.
- The court distinguished the offender's role from that of the co-offender who remained outside the warehouse with the earlier-detained victim, treating the two as occupying different roles within the enterprise.
- Under section 86(2) of the Crimes Act 1900 (NSW), background offending forming part of the same criminal operation but predating the offender's involvement did not attract personal liability, though it was taken into account as context for the offending in which he did participate.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 86(2) (aggravated take or detain a person with intent to commit a serious indictable offence)
Cases
- No cases were cited in the judgment.