Citation: R v Faletau [2016] NSWDC 380
Court: District Court of New South Wales
Date: 28 October 2016
Judge(s): Neilson DCJ
Background
On 31 August 2013, a group of four offenders drove a stolen car to Tumut and carried out a series of armed robberies at two adjacent residential properties in Dalhunty Street. Three of the four entered the homes while the fourth remained as the driver. The offender, aged 23 at the time, played a central role: he produced a replica firearm and pointed it at victims, participated in physical assaults, and helped collect stolen property including mobile phones, cash, and a camera.
The offender was arrested on the day of the offences and remained in continuous custody from that point. His matter was committed to the District Court and traversed a lengthy procedural history involving multiple judicial officers over approximately three years before reaching sentence.
On 5 April 2016, when the matter was listed for trial, the offender entered guilty pleas to two counts of aggravated armed robbery under s 97(2) of the Crimes Act 1900. Each count carried a Form 1 listing four further offences, including additional armed robberies against other victims, an offence of being a passenger in a vehicle taken without the owner's consent, and larceny of number plates.
Legal Issues
- What discount for the utilitarian value of the guilty plea was appropriate, given the lateness of the pleas?
- How should the totality principle apply when sentencing across two counts with multiple Form 1 matters?
- What weight should be given to the offender's personal circumstances, including age, substance abuse, and prospects of rehabilitation?
- How should the sentences reflect parity with sentences imposed on co-offenders Williams and Roberts?
- Was a finding of special circumstances warranted to adjust the ratio of non-parole period to total sentence?
Decision
Neilson DCJ held that the guilty pleas, entered on the day the trial was due to commence after years of procedural history, attracted only a 10% discount for their utilitarian value. The court applied the principles from R v Thomson and Houlton in calculating that discount, noting there was no basis for a more generous reduction given the timing.
On the question of the offender's personal circumstances, the court acknowledged his youth, chronic alcohol and drug dependency, and a difficult background. However, it weighed these against an unfavourable criminal history, poor behaviour in custody, and increased drug use since incarceration. The court identified a tension between the risk of institutionalisation arising from a lengthy sentence and the need to protect the community, ultimately resolving that tension in favour of a structured sentence with parole eligibility as a mechanism for incentivising rehabilitation.
Parity with co-offenders Williams and Roberts informed the structure of the sentences. The court was conscious that any unjustified disparity between sentences imposed on offenders involved in the same criminal enterprise would undermine confidence in the administration of justice, consistent with the principles in Dyer v R and Jackson v R. The sentences were calibrated accordingly.
Special circumstances were found in respect of the second count. The court identified two bases: the requirements of parity with co-offenders, and the view that the total non-parole period across all offending should not exceed four years. This justified departing from the standard proportion between non-parole period and head sentence.
Orders Made
- Count 1 (robbery of Amanda Robb): Convicted. Non-parole period of 4 years commencing 28 February 2014, expiring 27 February 2018. Balance of sentence of 1 year and 4 months, expiring 29 June 2019. Total sentence: 5 years and 4 months. Form 1 matters taken into account.
- Count 2 (robbery of Timothy Gorman): Convicted. Non-parole period of 3 years and 6 months commencing 31 August 2014, expiring 27 February 2018. Balance of sentence of 1 year and 10 months, expiring 30 December 2019. Total sentence: 5 years and 4 months. Special circumstances found. Form 1 matters taken into account.
- Parole eligibility date for both counts: 27 February 2018.
Key Takeaways
- A guilty plea entered on the day a trial is due to commence, after a protracted procedural history spanning years, will attract only a limited utilitarian discount of 10% under the principles established in R v Thomson and Houlton.
- Parity with co-offenders is a recognised sentencing consideration in NSW; unjustified disparity between sentences imposed on participants in the same offences can constitute a sentencing error.
- Special circumstances under the Crimes (Sentencing Procedure) Act 1999 may be established on more than one ground simultaneously, including parity requirements and the need to cap an aggregate non-parole period at an appropriate level.
- Where an offender presents with substance abuse, poor custody behaviour, and an unfavourable history, courts will balance rehabilitation prospects and the risk of institutionalisation against community protection, without automatically treating those factors as strongly mitigating.
- The District Court structured concurrent and partially cumulative sentences so that the total effective non-parole period did not exceed four years, even where two separate counts each carried substantial individual sentences.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 97(2) (aggravated armed robbery)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases
- R v Thomson and Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 (guilty plea discounts)
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 (sentencing for armed robbery)
- Dyer v R [2011] NSWCCA 185 (parity)
- Jackson v R [2010] NSWCCA 162 (parity)