R v Jado

[2019] NSWDC 690

District Court

New South Wales

Medium Neutral Citation:	R v Jado [2019] NSWDC 690
Hearing dates:	04 November 2019
Date of orders:	04 November 2019
Decision date:	04 November 2019
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	Aggregate sentence of imprisonment of 5 years with a non-parole period of 2 years 6 months
Catchwords:	CRIME — Violent offences — Detain for advantage — Circumstances of aggravation CRIME — Violent offences — Robbery — Circumstances of aggravation CRIME — Violent offences — Robbery in company SENTENCING — Penalties — Good behaviour bond SENTENCING — Relevant factors on sentence — Circumstances of offence SENTENCING — Relevant factors on sentence — Co-offenders SENTENCING — Relevant factors on sentence — Co-offenders — Joint criminal enterprise SENTENCING — Relevant factors on sentence — Form 1 offences SENTENCING — Relevant factors on sentence — Maximum penalty SENTENCING — Relevant factors on sentence — Multiple offences SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Fines Act 1996
Cases Cited:	Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518 Henry [1999] NSWCCA 107
Category:	Sentence
Parties:	Regina (Crown) David Jado (Offender)
Representation:	Peter Clayton (Crown) Abdul Shukoor (counsel) (Offender)   Director of Public Prosecutions (NSW) (Crown)
File Number(s):	2017/00389047

EX TEMPORE REVISED JUDGEMENT

SENTENCE

BREACH OF CONDITIONAL LIBERTY

1. First of all, with regard to the s 9 breaches, I note that the offender was sentenced to two bonds pursuant to s 9 Crimes (Sentencing Procedure) Act 1999, each of nine months from 19 December 2017. These were for offences of driving whilst suspended. The circumstances of those offences are set forth in the statement of facts that the Crown has been able to retrieve from records.

2. The first offence was on 19 January 2017; the next was on 22 November 2017. On both occasions the offender’s licence had been suspended for non‑payment of fines. The suspension operated by force of s 66 Fines Act 1996. Unfortunately, the driving involved some other misconduct; I note that he is not being punished for the further traffic offences committed in the course of the driving when he was detected, but it is relevant to the extent to which he has shown a disregard of his obligations, and it must be brought to account when assessing the objective gravity of the offending in each case.

3. In the course of the first offence on 19 January 2017 he drove through a stop sign without stopping and on the second occasion he was detected driving at 121 kilometres per hour in a 60 kilometre area. His explanation for that was he was in a rush to get home.

4. The bonds to which he was subject as a consequence of those offences were both current at the time of the offences that are now before me. He consents to this Court calling him to answer for the breaches of the bonds. Accordingly, I shall in each instance revoke the bond. In respect of those offences I will impose nominal punishment. I do not have his driving record before me.

5. I revoke the bonds in each case. I note that he stands convicted of those offences in the Magistrate’s Court. I shall in each case impose in the first instance no penalty pursuant to s 10A Crimes (Sentencing Procedure) Act 1999. In respect of the second offence on 22 November 2017 I specify a fixed term of imprisonment of one month. It is an indicative sentence for the purposes of the proceedings today.

INTRODUCTION TO THE SENTENCE PROCEEDINGS

6. The offender pleaded guilty to four offences in the Local Court and he confirmed his pleas of guilty before me.

7. The first offence is contrary to s 86(3) Crimes Act 1900. This is charged in the following terms: that he on 22 December 2017 at Fairfield Heights in the State of New South Wales while in company with Fredon Botrus and Mattias Gorges, took and detained GS without his consent and with intention to commit the serious indictable offence of robbery, and at the time of detaining actual bodily harm was occasioned to GS.

8. He also pleaded guilty to an offence contrary to s 86(2) (a) Crimes Act 1900. That offence alleged that he on 22 December 2017 at Fairfield Heights in the State of New South Wales while in company with Fredon Botrus and Mattias Gorges took and detained MD without his consent and with intention to commit the serious indictable offence of robbery.

9. He also pleaded guilty to two offences contrary to s 97(1) Crimes Act 1900. The first of those allege that on 22 December 2017 at Fairfield Heights in the State of New South Wales while in company with Fredon Botrus and Mattias Gorges he robbed MD of cash and a mobile phone, the property of MD. And in the second of those offences it was alleged that he on 22 December 2017 at Fairfield Heights in the State of New South Wales while in company with Fredon Botrus and Mattias Gorges robbed GS of cash and a mobile phone, the property of GS.

MAXIMUM PENALTIES

10. The maximum penalty for the offence contrary to s 86(3) Crimes Act 1900 is imprisonment for 25 years. For the other three offences the maximum penalty specified is 20 years imprisonment. There is no standard non‑parole period specified for the purposes of Pt 4 Div 1A Crimes (Sentencing Procedure) Act 1999 for any of these offences.

FORM ONE OFFENCES

11. He also asks that the Court take into account two offences on a Form 1. These were committed in the same sequence of misconduct on 22 December 2017. The first is an offence of demanding property with menaces, the victim being MD, when cash was demanded from him. The second offence at the same time and place alleged that there was a demand for property, namely cash, upon GS. The maximum penalty for each of these offences is imprisonment for 14 years.

12. He confirmed his wish that these offences be taken into account and admitted his guilt in respect of them. They are matters that will impact upon the sentence that would otherwise be imposed for the offence on which they are to be taken into account; that is, the offence contrary to s 86(3) Crimes Act 1900. The additional offences will impact upon the sentence that would have otherwise been imposed but not to a great extent in light of the extent to which all of these offences overlap each other in the sequence of misconduct upon which the offender and his accomplices engaged. But there must be some increase to reflect the aspect of personal deterrence that must be considered and the community’s entitlement for retribution for the full range of the misbehaviour upon which he engaged. I have had regard to the judgement of Spigelman CJ in Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518 and the statements of principle there provided.

PRE-SENTENCE CUSTODY

13. He was in custody in respect of this matter upon the date of his arrest for one day and thereafter from 12 March until the present time. Accordingly, the aggregate sentence I intend to impose today shall commence on 11 March 2019.

THE PLEAS

14. He pleaded guilty at an early stage of the proceedings and he is entitled to the discount of 25% to each of the sentences that would have been otherwise identified for the offences upon which sentence is to be determined. The discount is applied to the indicative sentences that are reached after the synthesis of objective and subjective facts, including the extent to which the offender has shown contrition and remorse and his prospects for rehabilitation.

ASSISTANCE

15. There is said to have been a measure of assistance to authorities that might attract the application of s 23 Crimes (Sentencing Procedure) Act 1999. In this case, I do not see that as appropriate. The response of the offender to his predicament when confronted by the authorities, and indeed, in the courts, including his participation in an interview with the police investigating the crimes and the provision of a statement confirming the essential facts which he admitted in that interview, all speak loudly of his contrition and remorse, but I am not persuaded that I should apply an additional discount in terms of the considerations required by s 23 Crimes (Sentencing Procedure) Act 1999. He did leave this jurisdiction and hence whatever bail had been extended to him after his arrest on 24 December 2017 was forfeited when he was located in Victoria where he had gone, out of this jurisdiction, and accordingly he has been in custody since.

THE OFFENDER’S BACKGROUND

16. I have already spoken to the fact that he committed these offences whilst subject to conditional liberty and that and his antecedent offences, of course, speak to assessment of sentence as aggravating factors, but not so as to increase the objective gravity of the misconduct or the proportionate sentence that would otherwise be attracted, but it does address the extent to which he otherwise might have leniency and the considerations required when assessing the need to provide protection to the community from the behaviour upon which the offender has been shown himself capable.

17. He is 20 years of age. He is still a very young man. His record of antecedents begins in July 2019 when he failed to appear and was prosecuted for that offence and was convicted without penalty pursuant to s 10A Crimes (Sentencing Procedure) 1999. In July 2018 he was before the Court for stealing from the person. That was proved in his absence. He was in due course in the Children’s Court, put on a bond for a period of six months, and the charge of failing to appear was dismissed with a caution. In November 2017 in the Local Court at Fairfield he was fined for negligent driving and he was fined and disqualified for driving whilst suspended. Again, that was a fine default offence. In December 2017 for driving whilst suspended he was fined and placed on a bond. That is one of the matters to which I have already referred. And then in November 2017 the later drive whilst suspended for which he suffered a fine and a s 9 bond and disqualification. His record is of modest proportion, as submitted on his behalf.

18. There are number of factors in his background which speak to the opportunities he will have toward rehabilitation, which leaves me with THE view that his prospects are strong. His difficulty, as I perceive it, is that he surrendered to participation in this misconduct because of his association with a group with whom he was taking prohibited drugs, as well as some alcohol, it would appear, which perhaps contributed to his decision to engage upon this serious sequence of crime. Self-induced intoxication or the ingestion of drugs and alcohol is a precursor to misconduct does not provide him with any relief. Section 21A (5AA) Crimes (Sentencing Procedure) Act 1999 applies here.

19. But his background does inform the Court as to how he comes to be before it and this should be synthesised with the material before me to provide an explanation why someone, who I might say made a very favourable impression on me in the witness box, might have been so stupid or foolish as to engage upon misconduct that has now earned him a gaol sentence.

THE FACTS

20. The facts are of concern. He was living in Fairfield West. He had two friends, the other two offenders with whom he was involved in these crimes. Both of them are children at law at this stage; the child Gorges is listed for final determination on 19 November 2019. The other fellow, Botrus, was found not guilty and the charge against him was dismissed at the hearing. It would seem upon the facts to which this offender has pleaded guilty that they were the most involved in the commission of these offences and yet he, because he was an adult at the time, faces the greater range of penalty and, indeed, unlike Botrus, has owned what he has done and is prepared to face the consequences, complete his custodial component, and then restore himself to his family and get on with his life.

21. During the evening of 22 December 2017 the three offenders met up with two others in a car park and all entered a motor vehicle belonging to one of the other friends with whom they were involved that night. They went for a drive through Fairfield Heights. The victims MD and GS were friends and were in Fairfield Heights walking to go to dinner. MD drew $200 cash from an ATM. GS already had $300 on him.

22. They walked towards Bodalla Street, Fairfield Heights and as they did so were seen by the three offenders. They decided to stop the victims. Gorges and Botrus spoke to MD and GS and told them to come for a walk. GS said, “No, I know what you’re going to do.” Gorges told GS to start walking, “before you made us look suspicious.” (Sic)

23. They walked towards the motor vehicle in the possession of the other associate. The detain offences are then discussed in the agreed facts.

24. After a short discussion Jado, that is this offender, and Gorges told the victims to get into Ganjee’s vehicle, Ganjee being the person who had the car, so that they could go and have a talk. They did so. But when they realised that there was not enough room for everybody MD was put into the boot of the vehicle and the rest of them got into the cabin. The vehicle was driven for a short period to a secluded road in Fairfield Heights. The man Ganjee and the other associate were in the front seats. Botrus, Jado and Gorges were in the back seat. The car stopped on the secluded road. Botrus, Jado and Gorges got out of the vehicle and let MD and GS out of the boot.

25. I pause to note that the facts at para 7 describe MD only having been put into the boot. That seems to have been an oversight. Indeed, it exacerbates the conduct when one considers that both of these young men were put into the boot of the vehicle. I do not know what type of vehicle it was and the extent to which they were discomforted in this exercise.

26. Once they were out of the boot they were walked a short distance from the car while Ganjee and his other friend remained in the vehicle. The robbery of MD then occurred. Botrus asked MD what phone he had and how much money he had. MD replied that he had a Samsung S8. Botrus asked MD for his internet banking details; MD replied he did not know them and that his father had the account. Botrus said, “Stop bullshitting me. Why are you lying? Give me your phone and money.” MD handed over his phone and $200 cash from his wallet. Botrus collected a golf club from the vehicle and struck MD on the back with it. Botrus continued to accuse MD of lying about the internet banking. Botrus took the SIM card from MD’s phone and returned the SIM card to him. He then made MD unlock the phone so that it could be used.

27. The next was the robbery upon GS. Botrus’s attention turned to GS. He asked GS if he had any money. GS replied he did not; Gorges demanded his phone and money. Gorges, Botrus and Jado grabbed at GS and searched him for his belongings. GS’s phone was taken from him by Botrus. Jado took the cash from his wallet. Jado said GS was a “smart arse”. There was an argument in which Jado slapped GS. Jado asked GS what he was doing in Fairfield Heights. GS replied he was picking up pills. Jado struck GS again. Botrus and Gorges each then punched GS. At the same time MD was punched to the left cheek by one of the offenders. Botrus brandished a pair of scissors and then used them to cut the lower neck area of GS.

28. Then were the two Form 1 offences; matters began to de‑escalate at this point. The three offenders demanded that the victims get back to the vehicle. They were told to go and get money from their houses. The car first drove to GS’s house. There one of the offenders told him to go and get money from his house; he was warned that if he did not return “we are gunna bash your mate”. GS got out of the vehicle, on the basis that he would return with money, but did not do so. When he did not return the car was driven to MD’s house. MD was instructed to contact his family to bring out $300 or there would be problems. MD contacted his father and asked for $300 cash. Jado and MD got out of the vehicle and Jado said to MD’s father that his son was trying to buy drugs and owes people $300. Jado said that he needed $300 to give to the dealer. MD’s father gave the money to Jado and Jado left with the others in the vehicle. This was a misrepresentation, all with a view to recovering money as part of the enterprise upon which the three had engaged throughout these events.

29. The police were contacted by MD’s father shortly after.

30. Jado returned to the vehicle and the $300 was split with Botrus and Gorges.

31. On 12 February 2018 Jado participated in an ERISP. He identified himself and Botrus and Gorges as having detained, attacked and stolen from the other two men. He indicated that he was remorseful and wanted to come forward as his mother was ill.

32. His role in these events was less than the other offenders, particularly Botrus who seems to have been able to escape consequence entirely. That said, this was a joint criminal enterprise upon which the three of them were engaged and each is responsible for the acts of all in the commission of these crimes.

33. But one must determine the role played by the offender for the assessment of sentence. I agree with the submissions made that the misconduct in the commission of these four offences falls below mid-range of objective gravity. Precisely where it should fit on the scale is always a matter of judgment and it is a relatively imprecise exercise. But upon my assessment of the objective circumstances, including the conduct as it is described, the contribution made by the offender in the commission of each of these offences and the role that he has embraced as reflected in the Statement of Agreed Facts, I would put the objective gravity perhaps a little above halfway between the low range and mid-range.

FURTHER SUBJECTIVE FACTS

34. There is a sentence assessment report. He has stable accommodation available in this State with his sister. He told me that he also has a home available to him by way of his uncle when he is ultimately released to the community. He would like to return to Melbourne where most of his family are living. His mother and father have both moved to Melbourne, he told me in evidence. He intends to surround himself with pro-social influences and distance himself from the antisocial associations he formed in Sydney. He was moving about with a group of some reputation in the Fairfield West area. This group, of which I have some knowledge from my time at the bar, he confirmed in his evidence, are extant in Fairfield West predominantly but do not have a corresponding group or membership in Victoria. He is confident that there he will be able to abstain from any involvement with other undesirable characters. That said, he had access to drugs in Victoria when he left this jurisdiction whilst subject to bail and that is a matter that will need to be addressed as part of his rehabilitation.

35. I should pause to note that in custody there are four offences on his record to do with drugs and a mobile phone. He explained that he took the blame for those items because of someone standing over him; there has been nothing put forth to gainsay that proposition. And so I will put those custodial offences to one side in the assessment of this matter.

36. He is attributed with accepting responsibility for actions and with not justifying or minimising his behaviour. Incarceration has given him the ability to reflect. He recognises that he deserves the consequences of his behaviour and as he said to me in the witness box he wants to serve the custodial component of his sentence and then restore himself to his family and his community. He behaved as he did, he said, because of impulsivity, following others, and all in order to maintain his standing within the group who are described and named in the sentence assessment report.

34. At the time of his actions he had been misusing cocaine, cannabis and Xanax, combined with alcohol, on a daily basis. He had been through some grief as a consequence of the loss of a friend, Antonio, in 2017, which led to greater drug and alcohol use and inability to control himself as a consequence. He is assessed at a medium risk of reoffending.

35. In his case there is the report from Dr Gerald Chew, an eminent psychiatrist I might say, who I have always found to be an objective reporter when called upon to assess people appearing before courts for sentence. He speaks of the death of the friend that led to the drug binge. He is attributed with remorse and regret for what he has done. There is a history of depression and anxiety in the context of his drug use. He is, in due course in the report, diagnosed with a poly-substance use disorder and a major depressive disorder and generalised anxiety disorder. It is said at para 32,

“There is a direct nexus between his mental health conditions and the offending behaviour and that his underlying conditions both contribute and perpetuate substance use and contributed to his offending behaviour.”

39. There is not a great deal of weight to be placed upon that passage. The report does not quantify in sufficient detail the premise upon which that conclusion is reached. I would accept that there is a connection between his propensity for drugs and the grief reaction suffered from the death of his friend. Whether that is what Dr Chew was attempting to communicate is not entirely clear. But it does not go a long way to mitigate his misconduct. The fact that he lost a friend, resorted to drugs and then under the influence of those drugs and when involved with others engaged upon this serious misconduct is not greatly mitigated by this background.

40. I would accept though the diagnosis that has been given him. It impacts upon the extent to which he is going to have more of a burden in gaol than might otherwise be the case. He is very young, at 20 years of age, to be in the adult system, and accordingly there is ample material upon which to find special circumstances to reduce the custodial component of the sentence.

41. He gave evidence, as I indicated. I found him to be a witness upon whom I can rely and I am confident that he is truly remorseful for his behaviour. I am also confident that there are good prospects for rehabilitation and properly managed in the community, abstinent from drugs, he is likely to become a worthwhile member of it. It will be difficult for him to get to Melbourne while he is on parole but that will be a matter for the Parole Authorities to perhaps organise under corresponding arrangements that I understand are in place between these jurisdictions to allow people to continue their lives interstate.

THE SENTENCE

42. The offender is convicted of each of the four offences. I have taken into account the additional offences for the offence of specially aggravated kidnapping in company. I have allowed discount of 25% to each of these sentences. I have rounded the sentences down in each case to a term of years, abandoning the odd days upon the application of the 25% discount to the starting points.

43. I have brought to mind what was said in the guideline judgement of Henry [1999] NSWCCA 107 dealing with armed robbery contrary to s 97(1) Crimes Act 1900. There is some comparison to be made and significant aspects in contrast to the guideline judgement and the example that was given in that decision. The significant aspect is that the Court there was determining sentence for one offender engaged upon an offence of short duration, armed with an offensive weapon such as a knife, with a risk of injury, with a small amount taken, a plea of guilty in circumstances where the case against the offender was strong. This misconduct involved three offenders over a protracted period of time. There was no vulnerability within the contemplation of s 21A or as discussed in Henry, although clearly these two young men were situationally-vulnerable walking through Fairfield West at night on their way to dinner when they were taken into the custody and the control of the three offenders. I have brought the guideline judgement to account as such.

44. Upon conviction and taking into account the additional offences:

45. For the specially aggravated kidnapping in company of the victim GS I specify an indicative sentence of four years imprisonment.

46. For each of the other offences of aggravated kidnapping of MD, robbery in company of MD and robbery in company of GS I specify indicative sentences in each case of three years.

47. I specify an aggregate sentence of five years, including a non‑parole period of two and a half years.

48. Accordingly, I sentence the offender to a term of imprisonment of five years commencing on 11 March 2019 and expiring on 10 March 2024. I specify a non-parole period of two and a half years, upon a finding of special circumstances; that shall expire on 11 September 2021.

49. I think those dates are correct, Mr Crown.

50. Sorry, you’re correct, I apologise. 10 March 2024 and 10 September 2021. You are correct.

51. I’ll leave the exhibits on file for such period as they require, including the written submissions on behalf of the offender. Thank you both for your assistance.

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Decision last updated: 21 November 2019