R v Forsythe - [2020] NSWDC 99

District Court

New South Wales

Medium Neutral Citation: R v Forsythe [2020] NSWDC 99
Hearing dates: 3 April 2020
Decision date: 09 April 2020
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Full-time custodial sentence. For orders see [85]

Catchwords: Multiple offences of aggravated robbery; aggregate sentence
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Law Enforcement (Powers and Responsibilities) Act 2002
Cases Cited: Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
Hejazi v R (2009) 217 A Crim R 151
R v Atonio (2005) 154 A Crim R 183
R v Henry (1999) 46 NSWLR 346
Category: Sentence
Parties: Director of Public Prosecutions (Crown)
Possi Forsythe (Offender)
Representation:
Counsel:
Ms I Maxwell-Williams (Crown)
Ms J Gallagher (Offender)
Solicitors:

File Number(s): 19/118003
Publication restriction: Nil

REMARKS ON SENTENCE

The offender is to be sentenced in respect of two charges of aggravated robbery pursuant to s 95(1) of the Crimes Act 1900 (Sequences 5 and 6). Both of the offences occurred on the same day but related to different victims. The maximum penalty proscribed for each is 20 years imprisonment and there is no Standard Non-Parole Period. The offender has asked that three additional charges be dealt with on a Form 1. They are as follows:

Sequence 1 – Aggravated enter dwelling with intent to commit serious indictable offence knowing people were there.

Sequence 3 – Passenger not disclose driver’s other passenger’s identity.

Sequence 4 – Passenger not disclose driver’s other passenger’s identity.

The first of those three offences was an offence pursuant to s 111(2) of the Crimes Act 1900. The maximum penalty for that offence is 14 years imprisonment. Sequences 3 and 4 constituted offences pursuant to s 16(2) of the Law Enforcement (Powers and Responsibilities) Act 2002. The offender has admitted his guilt in respect of each of the three offences and has asked that they be taken into account on sentence in respect of the second aggravated robbery offence (Sequence 6), of which Mr Naeem was the victim.
The two index offences occurred on 13 April 2019 and the offender was arrested on 15 April 2019 and has been in custody since that time.

The sentence hearing

The sentence hearing took place on 3 April 2020. The Crown Sentence Summary became Ex A. It included a Statement of Agreed Facts which may be summarised as follows.
On 13 April 2019, Naeem travelled to a petrol station at Lansvale to meet Mr Michael Matalone, who had advertised a motorcycle for sale and arranged to meet Naeem. When they met, Naeem spoke to Matalone and negotiated a sale price for the motorcycle. He observed the offender and another man, John Vaa, standing nearby.
Naeem requested a friend to obtain a sum of money for him to pay a deposit. He agreed with Matalone that they drive to that friend’s house at Auburn to complete the sale. Naeem drove to that address in Auburn and Matalone followed in his vehicle, which was towing…

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 Forsythe

Details

AGLC: R v Forsythe [2020] NSWDC 99
Case: [2020] NSWDC 99
Decision Date: 09 April 2020

CaseChat Overview and Summary

The case involved the appellant, Forsythe, who was convicted of multiple counts of aggravated robbery. The matter was brought before the court for the purpose of sentencing. The central issue was the imposition of an aggregate sentence for the multiple offences, considering the seriousness of the crimes and the need to deter such behaviour in the future.

The court had to balance several factors, including the nature and circumstances of the offences, the appellant's criminal history, and the need for general deterrence. The court examined the principle of totality, which seeks to prevent an excessive increase in the overall sentence due to the aggregation of multiple offences. It was necessary to consider whether a concurrent or consecutive sentence would be more appropriate, given the severity and circumstances of each offence.

The court found that a concurrent sentence would be appropriate for the first count of aggravated robbery, while a consecutive sentence would be warranted for the subsequent counts. The reasoning was based on the appellant's persistent offending behaviour and the need for the sentence to reflect the gravity of the crimes. The court ultimately determined that a full-time custodial sentence was necessary, taking into account the principles of justice and deterrence. The specific orders and the aggregate sentence were detailed in the judgment.

Orders

Orders of the court

Full-time custodial sentence. For orders see [85]

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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Medium Neutral Citation:	R v Forsythe [2020] NSWDC 99
Hearing dates:	3 April 2020
Decision date:	09 April 2020
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full-time custodial sentence. For orders see [85]
Catchwords:	Multiple offences of aggravated robbery; aggregate sentence
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Law Enforcement (Powers and Responsibilities) Act 2002
Cases Cited:	Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 Hejazi v R (2009) 217 A Crim R 151 R v Atonio (2005) 154 A Crim R 183 R v Henry (1999) 46 NSWLR 346
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Possi Forsythe (Offender)
Representation:	Counsel: Ms I Maxwell-Williams (Crown) Ms J Gallagher (Offender) Solicitors:
File Number(s):	19/118003
Publication restriction:	Nil