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District Court 29 July 2011

R v Nono

[2011] NSWDC 141

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW OFFENDER CONVICTED AFTER JURY TRIAL SENTENCE

Citation: R v Nono [2011] NSWDC 141
Court: District Court of New South Wales
Date: 29 July 2011
Judge(s): Gibson DCJ

Background

The offender, a 21-year-old man born in Sudan, was convicted after a nine-day jury trial of one count of robbery while armed with an offensive weapon, contrary to s 97(1) of the Crimes Act 1900 (NSW). The offence carried a maximum penalty of 20 years imprisonment with no standard non-parole period.

The robbery occurred just after midnight on 4 October 2009 at Quakers Hill. A pizza delivery driver arrived at an address in Lovegrove Drive following an order placed from a nearby party. The offender and a companion approached the driver, and after the pizzas were handed over, the offender produced a large knife, demanded money, and threatened the driver against contacting police. Approximately $460 in cash, the pizzas, and a bottle of soft drink were taken.

Police located the offender and his companion shortly afterward. The victim's distinctive pencil case was found on the offender during a search, and a large knife was later found and photographed at the party premises. The offender was convicted following trial and the matter proceeded to sentencing.

  • What was the appropriate head sentence and non-parole period for an offence of armed robbery under s 97(1) of the Crimes Act 1900 (NSW)?
  • Where did the offence fall within the range of objective seriousness for this type of offence?
  • Whether special circumstances existed warranting an adjustment to the standard ratio between the non-parole period and the head sentence.
  • How should the offender's significant subjective circumstances, including his background, age, and prospects of rehabilitation, be weighed against the need for general and personal deterrence?

Decision

Gibson DCJ found the offence to be objectively serious, though it fell towards the lower end of the range for offences of this type. There was no actual physical violence, but the use of a large knife and the threat of future violence were significant features. General deterrence and punishment were identified as the most important sentencing considerations for offences of this kind, with personal deterrence also relevant given the offender's prior criminal history and his denial of the police facts when speaking to the Probation and Parole officer.

The offender's subjective circumstances were substantial. He had spent his early childhood in Sudan, where he regularly witnessed violence and atrocities, before walking with his family to Kenya and eventually emigrating to New Zealand. He came from a supportive family and had undergone detoxification since entering custody in April 2010. His prospects of rehabilitation were assessed as good, particularly with appropriate supervision and treatment for his drug and alcohol issues upon release.

Gibson DCJ found special circumstances existed warranting a departure from the standard non-parole period ratio. The primary basis was the offender's need for an extended period of supervised parole, having regard to his youth, his drug and alcohol treatment needs, and the recommendations in the pre-sentence report. The court noted that the offender had been unable to enrol in prison programs while on remand, making post-release supervision all the more important.

The offender received no discount for an early guilty plea, having contested the charge at trial, though the court confirmed he was not to be penalised for exercising that right.

Orders Made

  • The offender was convicted of the offence of robbery while armed with an offensive weapon under s 97(1) of the Crimes Act 1900 (NSW).
  • Sentenced to five years imprisonment.
  • Non-parole period of two years and three months, commencing 4 February 2010, expiring 3 May 2012.
  • Released to supervised parole on 3 May 2012, with supervision continuing until 3 February 2015.

Key Takeaways

  • Armed robbery offences under s 97(1) of the Crimes Act 1900 (NSW) demand that general deterrence and punishment be accorded primary weight at sentencing, even where the offence falls towards the lower end of the objective seriousness range.
  • The District Court treated the absence of actual physical violence as a mitigating feature, while still recognising that the production of a knife and serious threats to the victim were significant aggravating elements.
  • Significant personal hardship in an offender's background, including exposure to war, displacement, and deprivation in early childhood, is a relevant subjective circumstance the sentencing court will weigh, even where it does not displace the need for a full-time custodial sentence.
  • A finding of special circumstances may be made where an offender's youth, drug and alcohol treatment needs, and limited access to rehabilitation programs during remand collectively indicate that a longer period of supervised parole would better serve rehabilitation.
  • Where an offender contests a charge at trial and is convicted, no discount applies for a guilty plea, though the court confirmed that the offender is not actively penalised for exercising the right to trial.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(1) (robbery while armed with an offensive weapon)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A (aggravating, mitigating and other factors in sentencing)

Cases
- R v Henry (1999) 46 NSWLR 346
- R v Ponfield (1999) 48 NSWLR 327