District Court
New South Wales
- Amendment notes
Medium Neutral Citation: R v AB (A pseudonym) (No.2) [2021] NSWDC 175 Hearing dates: 11 May 2021 Date of orders: 13 May 2021 Decision date: 13 May 2021 Jurisdiction: Criminal Before: Abadee DCJ Decision: See paragraphs 115 – 124
Catchwords: CRIME – sentencing – robbery in company – application of R v Henry guidelines – offender’s role in planning robbery – whether reduced culpability because of victim’s sexual harassment of her and/or mental disorder – whether extra-curial punishment suffered because of social media posts consequential to newspaper articles – whether risk of re-offending more appropriately addressed by intensive corrections order or full-time detention
Legislation Cited: Crimes Act1900 (NSW) ss 97, 98, 148
Crimes (Sentencing Procedure) Act1999 (NSW) ss 3A, 21A
Cases Cited: Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No.1 of 2002) 56 NSWLR 146
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
Muldrockv The Queen (2011) 244 CLR 120
R v AB (A Pseudonym) [2021] NSWDC 173
RvII [2008] NSWSC 325
R vJurisic (1998) 45 NSWLR 209
RvMurchie (1999) 108 A Crim R 482
R vWran [2016] NSWSC 1015
Texts Cited: Odgers, Sentence, 5TH ed (2020)
Category: Sentence Parties: AB (offender)
Director of Public Prosecutions (NSW)Representation: Counsel:
Solicitors:
Mr M Valentin for the offender
Solicitor Advocate for the Director of Public Prosecutions (NSW)
LegalAid for the offender
File Number(s): 2020/86187 Publication restriction: (1) Order, pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), that the applicant be referred to as “AB” until 11 May 2024.
(2) Order that there be a prohibition upon the disclosure of information identifying AB, being the description of her name and location of her residential address, until 11 May 2024
(3) Orders (1) & (2) are made on the basis that it is necessary to protect the safety of the applicant.
SENTENCING REMARKS
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The offender appears for sentencing, following a plea made on 3 November 2020 in the Wyong Local Court, for the offence that on 11 March 2020, at The Entrance, she robbed Mr Adolphus Zausa of certain property, to wit, one men’s wallet, personal bank and other cards, and a mobile phone, whilst being in the company of a male co-offender, contrary to s 97(1) of the Crimes Act 1900 (NSW).
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The maximum penalty for this offence is 20 years’ imprisonment. There is no standard non-parole period.
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In this hearing, she asks the Court to take into account an offence on a Form 1, that on the same day, in a unit in the Ocean Front Holiday Motel at Marine Parade, she stole certain property (a 2 litre Coke bottle, a bottle…
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- AGLC
- R v AB (a pseudonym) (No.2) [2021] NSWDC 175
- Case
- [2021] NSWDC 175
- Decision Date
CaseChat Overview and Summary
The central legal issues revolved around the application of the principles established in R v Henry, particularly in assessing the culpability of the offender. The court had to determine whether AB's role in planning the robbery, her prior relationship with the victim, and her mental health condition warranted a reduction in culpability. Additionally, the court considered whether the punishment AB had already endured, including public scrutiny from social media posts, should be factored into the sentencing decision. The appeal also challenged whether the risk of re-offending was more appropriately managed through an intensive corrections order rather than full-time detention.
The court reviewed the sentencing judge's application of the R v Henry guidelines and found that the judge had considered the mitigating factors, including AB's role and the relationship with the victim, but did not sufficiently address the impact of the social media posts and the risk of re-offending. The court held that while the sentence was within the appropriate range, it did not adequately reflect the mitigating circumstances. Consequently, the appeal was partly allowed, and the sentence was quashed. The case was remitted to the sentencing judge for reconsideration, with specific directions on how to properly weigh the mitigating factors and the appropriate sentence to impose.
The final orders, detailed in paragraphs 115 to 124, included the quashing of the original sentence and the direction that the case be reconsidered by the sentencing judge with the specific guidelines provided by the court. This included a requirement to reassess the mitigating factors, particularly the impact of the social media posts and the risk of re-offending, in determining the appropriate sentence.
Orders
Orders of the court
See paragraphs 115 – 124
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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