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R v AB (a pseudonym) (No.2)

R v AB (a pseudonym) (No.2)

Case [2021] NSWDC 175 13 May 2021

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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
Clinton v R [2009] NSWCCA 276
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
R v Henry (1999) 46 NSWLR 346
RvII [2008] NSWSC 325
R vJurisic (1998) 45 NSWLR 209
R v Lesi [2005] NSWCCA 63
RvMurchie (1999) 108 A Crim R 482
R v Pullen [2019] NSWCCA 264
R vWran [2016] NSWSC 1015
The Queen v De Simoni (1981) 147 CLR 383
Wany v DPP [2020] NSWCA 318

Texts Cited:
Odgers, Sentence, 5TH ed (2020)

Category: Sentence
Parties: AB (offender)
Director of Public Prosecutions (NSW)
Representation:
Counsel:
Mr M Valentin for the offender
Solicitor Advocate for the Director of Public Prosecutions (NSW)
Solicitors:
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

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).
The maximum penalty for this offence is 20 years’ imprisonment. There is no standard non-parole period.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v AB (a pseudonym) (No.2)

Details

AGLC: R v AB (a pseudonym) (No.2) [2021] NSWDC 175
Case: [2021] NSWDC 175
Decision Date: 13 May 2021

CaseChat Overview and Summary

In this case, the appellant, AB, was convicted of robbery in company and was sentenced to a term of imprisonment. The appeal concerns the sentence imposed by the sentencing judge, focusing on whether the sentencing principles were correctly applied and whether the sentence was manifestly excessive. AB, represented by counsel, argued that the sentencing judge did not adequately consider certain mitigating factors. The Crown, represented by a prosecutor, submitted that the sentence was appropriate given the seriousness of the offence and the need to deter similar conduct.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v AB (a pseudonym) (No.2) [2021] NSWDC 175

Most Recent Citation

R v AB (a pseudonym) (No.3) [2021] NSWDC 482

Cases citing this decision · 2 of 2 shown

R v AB (a Pseudonym) (No. 4)
[2022] NSWDC 17 Para 2

…rders and the offending. AB was sentenced to a term of imprisonment of 2 years, to be served by intensive correction. 2. R v AB (A pseudonym)(No.2) [2021] NSWDC 175…
R v AB (a pseudonym) (No.3)
[2021] NSWDC 482 Para 17

…s referred to extensively in my sentencing remarks, which have now been publicly available for some time [5] . 5. R v AB (A pseudonym) (No.2) [2021] NSWDC 175…

View all 2 citing cases →

Cases cited in this decision · 12 of 12 shown

R v AB (a pseudonym)
[2021] NSWDC 173 Para 94

…uilty plea; when certain parts of her agreed facts were reported upon by the media. The circumstances are set out in my reasons: R v AB (A Pseudonym) [2021] NSWDC 173.…
Wany v Director of Public Prosecutions
[2020] NSWCA 318 Para 103

…This requires the Court to consider whether an ICO or full-time detention is more likely to address the offender’s risk of re-offending: Wany v DPP [2020] NSWCA 318 at [56], [60].…
Moore v The Queen
[2019] NSWCCA 264 Para 105

…the views of the Attorney General) may be more likely to occur when the offender is supervised with access to programs in the community ( R v Pullen [2019] NSWCCA 264).…
R v Wran
[2016] NSWSC 1015 Para 96

…ending. In any event, even if it did not, public humiliation which has a psychological effect on an offender may be taken into account ( R v Wran [2016] NSWSC 1015 at [78]-[79]).…
Muldrock v The Queen
[2011] HCA 39 Para 110

…As the plurality of the High Court stated in Muldrock v The Queen (2011) 244 CLR 120 at [56], it cannot confidently be predicted that the offender will get the treatment that she needs during any non-parole period associated with full-time detention.…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194 Para 70

…a fully appropriate vehicle for general deterrence. Her mental disorders also reduce the significance of personal deterrence ( DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177]).…
Clinton v R
[2009] NSWCCA 276 Para 96

…the form of retribution or retaliation subsequently meted out by members of the public fit within the rubric of extra-curial punishment ( Clinton v R [2009] NSWCCA 276 at [31]). I do not see much conceptual difference between physical injury meted out by members of the public and the psychological damage which would…
R v II Non-publication Order
[2008] NSWSC 325 Para 30

…so applies to the subject offence of robbery in company : R v Murchie (1999) 108 A Crim R 482 at [20]; R v Lesi [2005] NSWCCA 63 at [28]-[31]; R v II [2008] NSWSC 325 at [24].…
R v Lesi
[2005] NSWCCA 63 Para 30

…subsequent authority posits that it also applies to the subject offence of robbery in company : R v Murchie (1999) 108 A Crim R 482 at [20]; R v Lesi [2005] NSWCCA 63 at [28]-[31]; R v II [2008] NSWSC 325 at [24].…
Re Attorney-General's Application (No 1 of 2002) (NSW)
[2002] NSWCCA 518 Para 42

…ve been accorded to the principal offence ( Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No.1 of 2002 ) 56 NSWLR 146 per Spigelman CJ (Wood CJ at CL, Grove, Sully and James JJ agreeing) at [41]-[44].…
R v Henry
[1999] NSWCA 111 Para 28

…The Court’s assessment of the gravity of the offending conduct is influenced by the guideline judgment of R v Henry (1999) 46 NSWLR 346, and particularly the seven considerations referred to by Spigelman CJ at [162]. Those considerations are:…
R v De Simoni
[1981] HCA 31 Para 35

…ult perpetrated by a co-offender on the victim before, or at the time of the robbery may contravene the De Simoni principle ( The Queen v De Simoni (1981) 147 CLR 383 at 389).…

Legislation cited in this decision · 3

Crimes Act 1900 (ACT)
148, 97, 98 4 mentions (from Para 1)
Crimes (Sentencing Procedure) Act 1999 (NSW)
21A, 3A 3 mentions (from Para 33)
Court Suppression and Non-publication Orders Act 2010 (NSW)
1 mention

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 Clinton v R [2009] NSWCCA 276 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 R v Henry (1999) 46 NSWLR 346 RvII [2008] NSWSC 325 R vJurisic (1998) 45 NSWLR 209 R v Lesi [2005] NSWCCA 63 RvMurchie (1999) 108 A Crim R 482 R v Pullen [2019] NSWCCA 264 R vWran [2016] NSWSC 1015 The Queen v De Simoni (1981) 147 CLR 383 Wany v DPP [2020] NSWCA 318
Texts Cited:	Odgers, Sentence, 5TH ed (2020)
Category:	Sentence
Parties:	AB (offender) Director of Public Prosecutions (NSW)
Representation:	Counsel: Mr M Valentin for the offender Solicitor Advocate for the Director of Public Prosecutions (NSW) Solicitors: 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.