Citation: R v Papara [2014] NSWDC 120
Court: District Court of New South Wales
Date: 16 May 2014
Judge: Berman SC DCJ
Background
The offender, an 18-year-old male, appeared for sentence in connection with an offence of aggravated break, enter and commit affray in company. The offence occurred on the night of the 2013 Sydney Mardi Gras, when the offender and companions entered a convenience store after forcibly breaking open the front door to assist his girlfriend, who was involved in a confrontation with store staff inside.
Once inside, the offender cornered a male employee and punched him at least nine times while the victim was crouched on the ground covering his head. The offender then pushed a female employee into a wall before verbally abusing staff as he left. He was identified some months later through fingerprint and DNA evidence.
The offender had a prior history of alcohol-fuelled misconduct. He had previously received a fine for assaulting a police officer at a schoolies event in Queensland, and had subsequently committed two further offences while drunk, including one in which he was armed with a knife. Those later matters had been dealt with by the Waverley Local Court by way of section 9 bonds.
Legal Issues
- Whether a custodial sentence was required for an offence carrying a maximum penalty of 20 years imprisonment and a standard non-parole period of five years
- What form any sentence of imprisonment should take, given the offender's age, limited criminal history, and recent positive steps
- Whether the offender's pattern of alcohol-related offending, incomplete remorse, and the objective gravity of the conduct precluded a non-custodial order such as community service or a suspended sentence
Decision
The District Court found that imprisonment was required. Berman SC DCJ noted the well-established principle that sentences other than imprisonment for offences carrying standard non-parole periods should be uncommon, and was satisfied that a Community Service Order would not adequately reflect the objective gravity of the conduct. The violence used in this case was characterised as considerably more serious than the stealing typically associated with break and enter offences.
The Court rejected a suspended sentence as insufficient, reasoning that it would amount to no effective punishment given the offender's history. Having assaulted a police officer, been involved in an armed affray, and now committed this offence, the offender would otherwise have faced only the $700 Queensland fine as cumulative consequence. General and specific deterrence weighed heavily against that outcome.
In the offender's favour, the Court noted his youth (just 18 at the time), his relatively stable upbringing, changed associations, and recent part-time employment with his stepfather. However, the Court found the expression of remorse inadequate, describing the offender's apology to his parents as being about embarrassment rather than genuine contrition for wrongdoing.
The Court determined the appropriate sentence was likely to be less than two years imprisonment and referred the offender for assessment for an Intensive Corrections Order (a supervised order served in the community rather than full-time custody). The Court made clear that if the offender was assessed as unsuitable for that order, a full custodial sentence would follow.
Orders Made
- Bail continued on existing conditions
- Offender to reside at a specified address with his mother
- Offender to report to the city office of the Probation and Parole Service within seven days
- Offender referred for assessment as to suitability for an Intensive Corrections Order
- Final sentence to be determined following assessment
Key Takeaways
- The District Court confirmed that sentences other than imprisonment for offences attracting a standard non-parole period should be uncommon, and that the standard non-parole period (here, five years) remains a relevant guidepost even where the court departs from it.
- A Community Service Order was found inadequate where the objective gravity of the violence was significant, regardless of the offender's youth and positive background.
- Suspended sentences were held inappropriate where they would produce no effective punishment in light of the offender's accumulating history of alcohol-fuelled offending.
- Youth and changed circumstances can weigh in an offender's favour, but the District Court here found they were insufficient to displace the need for a custodial sentence given the seriousness and repetition of the conduct.
- Remorse expressed only as embarrassment to family, rather than genuine contrition for the harm caused to victims, carried limited mitigating weight in the sentencing exercise.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW) (aggravated break, enter and commit affray in company, maximum penalty 20 years imprisonment; standard non-parole period of five years)
- Crimes (Sentencing Procedure) Act 1999 (NSW) (standard non-parole periods; section 9 bonds; provisions relating to Intensive Corrections Orders)
Cases:
- No specific cases were cited by name in the judgment text or metadata.