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District Court 30 March 2010

R v Shaun Robert TUIRA

[2010] NSWDC 182

Assault & violenceTheft & property
CRIMINAL LAW SENTENCE ROBBERY OF FAST FOOD RESTAURANT PLEA OF GUILTY AT EARLIEST OPPORTUNITY DRUG, ALCOHOL AND GAMBLING ADDICTIONS NO SENTENCE BUT FULL

Citation: R v Shaun Robert Tuira [2010] NSWDC 182
Court: District Court of New South Wales
Date: 30 March 2010
Judge(s): Cogswell SC DCJ

Background

The offender, a 23-year-old man with a prior criminal record including two terms of imprisonment, pleaded guilty to a charge of robbery under s 94 of the Crimes Act 1900. The offence involved entering a Subway restaurant in Gladesville on the morning of 14 November 2008, posing as a customer, and then pushing through the service area door to access the cash register and a safe. The offender took over $700 in cash and a mobile phone, returning the victim's wallet when asked.

At the time of the offence, the offender was subject to a suspended sentence (and the attached good behaviour bond) arising from a prior conviction for assaulting a police officer. He did not respond to initial attempts by police to serve process, but handed himself in at Campbelltown Police Station almost a year after the offence. He pleaded guilty at the earliest available opportunity.

The offender's background included a difficult upbringing, early exposure to substance abuse and violence, and the development of serious addictions to cannabis, amphetamines, alcohol, and gambling. A forensic psychologist's report confirmed these issues and recommended custodial rehabilitation programs.

  • What was the appropriate head sentence for a robbery offence, having regard to the offender's criminal history, the circumstances of the offence, and the aggravating factor of offending while on a good behaviour bond?
  • What discount should apply to the head sentence in recognition of the early guilty plea?
  • Whether a non-parole period shorter than the standard three-quarters proportion of the head sentence was warranted, given the offender's youth and rehabilitation prospects?
  • Whether a compensation order was appropriate in the circumstances?

Decision

The court assessed the objective seriousness of the robbery as significant, noting that it occurred in a commercial premises against a sole employee, and that the offender had identified and exploited the opportunity while present at the scene. Although the court was not satisfied beyond reasonable doubt that there had been any significant advance planning, it found the offender had waited for the right moment once inside the store. The level of actual violence was limited to the victim being pushed back by the opening of the service door.

The commission of the offence while on a good behaviour bond was treated as an aggravating factor, as was the offender's prior criminal record, which included an armed robbery dealt with in the District Court in 2004 and a gaol term in 2006. The court also took into account the offender's remorse and his expressions of contrition to the victim during the robbery itself. An overall sentence of four years was assessed as appropriate before any discount.

The court applied the maximum discount for the early guilty plea, reducing the head sentence to three years. A non-parole period of two years was fixed, which is shorter than the standard three-quarters proportion, in recognition of the offender's youth, the need for rehabilitation, and his good behaviour in custody. The court observed that securing employment after release and addressing his addictions would be central to rehabilitation.

The prosecution ultimately withdrew its application for a compensation order, acknowledging that the offender was unlikely to be in a financial position to pay. The court accepted this course without making such an order.

Orders Made

  • Head sentence of three years imprisonment.
  • Non-parole period of two years, with a balance of term of one year.
  • Sentence to expire on 20 September 2012; non-parole period expiring 20 September 2011.
  • No compensation order made (application withdrawn by the prosecution).
  • Parole conditions to include supervision by the Probation and Parole Service, reporting within seven days of release, notification of any change of address, and good behaviour.

Key Takeaways

  • The District Court confirmed that committing an offence while subject to a good behaviour bond attached to a suspended sentence is a formal aggravating factor that must be reflected in the sentence.
  • An early guilty plea at the first available opportunity attracted the maximum available discount, reducing a four-year head sentence to three years.
  • Where an offender is young and demonstrates genuine rehabilitation prospects, a non-parole period shorter than the standard three-quarters of the head sentence may be appropriate, even where prior custodial sentences have been served.
  • Forensic psychological evidence addressing addiction, background, and rehabilitation prospects was relevant to the sentencing exercise, particularly in identifying programs available in custody and the importance of post-release employment.
  • A compensation order was not pursued where the offender's financial position made recovery practically unlikely, with the prosecution noting that the victim could pursue the claim through other avenues.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 94 (robbery)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 50
- Drug Court Act 1998 (NSW), s 18B

Cases:
- R v Henry (Court of Criminal Appeal guideline judgment on armed robbery sentencing) (referenced in submissions; not formally cited in the text)