R v Russell - [2020] NSWDC 869

District Court

New South Wales

Medium Neutral Citation: R v Russell [2020] NSWDC 869
Hearing dates: 13/11/20, 16/11/20
Date of orders: 16/11/20
Decision date: 16 November 2020
Jurisdiction: Criminal
Before: Bourke SC DCJ
Decision:
Convicted and sentenced to an aggregate term of imprisonment of 5 years with a NPP of 3 years 6 months (7/8/20-6/2/24). I find special circumstances.
The indicative sentences are:
Seq 1 Robbery – 2 years 9 months
Seq 8 Robbery – 3 years (Form 1 taken into account)
Seq 4 Take motor vehicle with occupant on board – 2 years 6 months with NPP 1 year 9 months.
For seq 5 and 6 on the s166 certificate – s10A conviction but with no other penalty.
For seq 7 on the s166 certificate – I impose a fixed term of imprisonment of 4 months to date from 7/8/20
I find that the offender is an “eligible convicted offender” and I refer the offender to the Drug Court for consideration as to whether he is eligible and suitable for the making of a Compulsory Drug Treatment Order.
The report of Kris North dated 29/10/20 is to be provided to Corrective Services.

Catchwords:
Crime – Sentence – Robbery – Take motor vehicle with occupant onboard

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999
Drug Court Act 1998

Cases Cited:
R v Henry and Ors (1999) 46 NSWLR 346
R v Black [2001] NSWCCA 41
Bugmy v The Queen [2013] 249 CLR 571

Category: Sentence
Parties: NSW DPP – Crown
Damian Russell - Offender
Representation: Mr Kanakaratne for Crown
Mr Averre for Offender

File Number(s): 20/6585, 20/70745

sentence

Mr Damian Russell is for sentence in relation to three offences today, two of those being robbery offences and the third being an offence of taking a motor vehicle with an occupant onboard. The maximum penalty for the robbery offence is 14 years’ imprisonment in each case and for the take motor vehicle offence, a ten year maximum is prescribed, as well as a standard non-parole period of three years. In addition to those matters, the offender asks that in sentencing him for the second, sequence 8 robbery, that I take into account offences on a Form 1 document, which I intend to do. In addition, there are three matters on a s 166 certificate that I am asked to deal with under the relevant provisions, which I will do also. Mr Russell has pleaded guilty at an early stage and is entitled to a discount of 25% on account of the utilitarian value of that plea.

FACTS

The facts of the offences, which are agreed, involved a series of criminal acts that commenced on 4 January 2020 and ended on 6 January 2020. The first offence in time, which is one of take and drive conveyance, is on a Form 1 document and occurred at about 12.30pm on Saturday, 4 January 2020. At that time, the offender was walking on George Street, Clyde. At the same time, Ms Dawn Koutalis was sitting…

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 Russell

Details

AGLC: R v Russell [2020] NSWDC 869
Case: [2020] NSWDC 869
Decision Date: 16 November 2020

CaseChat Overview and Summary

The matter of R v Russell came before the court, where Russell faced charges related to a series of criminal activities, including robbery and taking a motor vehicle with an occupant onboard. The dispute centred on the appropriate sentencing for these offenses, considering the severity and nature of the crimes committed. The court was tasked with determining the aggregate term of imprisonment and other relevant penalties, including non-parole periods and special circumstances.

The primary legal issues before the court were the appropriate sentence for each sequence of offences, the applicability of special circumstances, and whether the offender qualified as an eligible convicted offender for consideration under the Drug Court for a Compulsory Drug Treatment Order. The court had to balance the seriousness of the crimes against the offender's personal circumstances and potential for rehabilitation.

In delivering the judgment, the court assessed each sequence of offences, considering both the indicative sentences and the mitigating and aggravating factors presented. The court found that special circumstances did apply and imposed an aggregate term of imprisonment of 5 years, with a non-parole period of 3 years 6 months. The court also imposed specific penalties for each sequence of offences, taking into account the form taken and other relevant factors. Additionally, the offender was deemed eligible for consideration by the Drug Court for a Compulsory Drug Treatment Order. The court directed that a report be provided to Corrective Services.

The final orders included the imposition of the aggregate sentence, the declaration of special circumstances, and the referral of the offender to the Drug Court. The detailed breakdown of penalties for each sequence of offences was also clearly outlined, ensuring the offender understood the consequences of his actions and the basis for the court's decision.

Orders

Orders of the court

Convicted and sentenced to an aggregate term of imprisonment of 5 years with a NPP of 3 years 6 months (7/8/20-6/2/24). I find special circumstances.

The indicative sentences are:

Seq 1 Robbery – 2 years 9 months

Seq 8 Robbery – 3 years (Form 1 taken into account)

Seq 4 Take motor vehicle with occupant on board – 2 years 6 months with NPP 1 year 9 months.

For seq 5 and 6 on the s166 certificate – s10A conviction but with no other penalty.

For seq 7 on the s166 certificate – I impose a fixed term of imprisonment of 4 months to date from 7/8/20

I find that the offender is an “eligible convicted offender” and I refer the offender to the Drug Court for consideration as to whether he is eligible and suitable for the making of a Compulsory Drug Treatment Order.

The report of Kris North dated 29/10/20 is to be provided to Corrective Services.

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

Full text does not contain this section.

Medium Neutral Citation:	R v Russell [2020] NSWDC 869
Hearing dates:	13/11/20, 16/11/20
Date of orders:	16/11/20
Decision date:	16 November 2020
Jurisdiction:	Criminal
Before:	Bourke SC DCJ
Decision:	Convicted and sentenced to an aggregate term of imprisonment of 5 years with a NPP of 3 years 6 months (7/8/20-6/2/24). I find special circumstances. The indicative sentences are: Seq 1 Robbery – 2 years 9 months Seq 8 Robbery – 3 years (Form 1 taken into account) Seq 4 Take motor vehicle with occupant on board – 2 years 6 months with NPP 1 year 9 months. For seq 5 and 6 on the s166 certificate – s10A conviction but with no other penalty. For seq 7 on the s166 certificate – I impose a fixed term of imprisonment of 4 months to date from 7/8/20 I find that the offender is an “eligible convicted offender” and I refer the offender to the Drug Court for consideration as to whether he is eligible and suitable for the making of a Compulsory Drug Treatment Order. The report of Kris North dated 29/10/20 is to be provided to Corrective Services.
Catchwords:	Crime – Sentence – Robbery – Take motor vehicle with occupant onboard
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Drug Court Act 1998
Cases Cited:	R v Henry and Ors (1999) 46 NSWLR 346 R v Black [2001] NSWCCA 41 Bugmy v The Queen [2013] 249 CLR 571
Category:	Sentence
Parties:	NSW DPP – Crown Damian Russell - Offender
Representation:	Mr Kanakaratne for Crown Mr Averre for Offender
File Number(s):	20/6585, 20/70745