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District Court 17 April 2015

R v MIKA

[2015] NSWDC 321

Assault & violenceTheft & property
CRIMINAL

Citation: R v MIKA [2015] NSWDC 321
Court: District Court of New South Wales
Date: 17 April 2015
Judge(s): Judge S Norrish QC

Background

The offender, a 24-year-old homeless man, was found guilty by a jury of robbery with grievous bodily harm contrary to s 95(1) of the Crimes Act 1900. The offence occurred in the early hours of 25 August 2013 outside the Wayside Chapel in Kings Cross, when the offender approached a 63-year-old homeless man who was asleep on the street and stomped on his head at least five times. A second man who attempted to intervene was threatened and told he would "be next." The offender then took approximately twenty dollars, tobacco, and a cigarette lighter from the victim.

The victim suffered comminuted and depressed fractures of the nasal bones, a displaced fracture of the right orbital rim, facial lacerations, abrasions, and swelling. Despite the severity of the attack, he was discharged from hospital the following day. A victim impact statement could not be obtained due to the victim's transient lifestyle.

The offender was acquitted on a second count of assaulting the witness who had intervened. The court noted no inconsistency between the two jury verdicts, given the different issues each count raised.

  • What was the appropriate head sentence and non-parole period for robbery with grievous bodily harm, having regard to the maximum penalty of 20 years imprisonment and the absence of a standard non-parole period?
  • What weight should be given to general and personal deterrence where the offender had a mental impairment of modest severity?
  • What were the mitigating factors, including mental health, background, conditional liberty, and presentence custody?
  • Whether special circumstances existed to justify a non-parole period departing from the statutory ratio.

Decision

Judge Norrish assessed the objective seriousness of the offence as substantial. The attack was unprovoked and sustained, directed at a sleeping and defenceless elderly man. The court found that the taking of property appeared opportunistic and was not the primary motive, which the court regarded as aggravating the overall character of the violence. The offender showed no remorse in his police interview, offered a false exculpatory account, and maintained an aggressive demeanour.

The court weighed several mitigating factors. The offender had a difficult background, was living rough on the streets, and was affected by alcohol at the time of the offence. He was also found to have a mental impairment of modest severity. Drawing on the principle from R v Engert, the court accepted that a mental disorder need not amount to a serious psychiatric illness before it becomes relevant to sentencing, and that even modest mental health conditions may justify moderating the weight given to general and personal deterrence.

The offender was on conditional liberty at the time of the offending, which the court treated as an aggravating feature under the Crime (Sentencing Procedure) Act 1999. His presentence custody, commencing 25 September 2013, was taken into account in backdating the sentence. The court identified special circumstances justifying departure from the standard non-parole ratio, on the basis that a longer parole period would better promote rehabilitation for a person with the offender's background and impairments.

The court fixed a total sentence of six years, comprising a three-year non-parole period and a three-year balance of term, backdated to 25 September 2013. The non-parole period was structured to permit release to parole in approximately 18 months from the date of sentence.

Orders Made

  • The offender was convicted on Count 1 (robbery with grievous bodily harm contrary to s 95(1) of the Crimes Act 1900).
  • Sentenced to a total term of six years imprisonment.
  • Non-parole period of three years, commencing 25 September 2013 and expiring 24 September 2016.
  • Balance of sentence of three years, expiring 24 September 2019.
  • Eligible for release to parole on 24 September 2016, subject to the Parole Authority's determination.

Key Takeaways

  • A mental impairment of modest severity, falling short of a serious psychiatric illness, can still be relevant to sentencing and may warrant moderating the weight given to both general and personal deterrence, consistent with the principle in R v Engert.
  • Where the primary driver of an offence appears to be unprovoked violence rather than the taking of property, the robbery element may be regarded as aggravating the overall seriousness of the conduct rather than mitigating the violence.
  • Offending while on conditional liberty remains a statutory aggravating factor under the Crime (Sentencing Procedure) Act 1999, even where other mitigating circumstances are present.
  • Special circumstances justifying an extended parole period can be found where rehabilitation is identified as a significant sentencing objective, particularly for offenders with complex personal histories and mental health concerns.
  • Presentence custody must be accounted for in the structure of the sentence, and backdating the commencement date is the mechanism by which the court gives that credit.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 95(1)
- Crime (Sentencing Procedure) Act 1999 (NSW)

Cases
- DPP (Commonwealth) v De La Rosa [2010] NSWCCA 194
- R v Engert (1995) 84 A Crim R 67
- R v Henry [1999] NSWCCA 107
- R v Israil [2002] NSWCC 255
- R v Lattouf (unreported, 1996, NSWCCA)
- R v Scognamiglio (1991) 56 A Crim R 81