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District Court 5 December 2018

R v Tuaoi

[2018] NSWDC 498

Assault & violenceTheft & property
CRIMINAL LAW SENTENCE ROBBERY IN COMPANY FORM 1 JOINT CRIMINAL ENTERPRISE

Citation: R v Tuaoi [2018] NSWDC 498
Court: District Court of New South Wales
Date: 5 December 2018
Judge(s): Wilson SC DCJ

Background

The offender was sentenced following a guilty plea to one count of robbery in company, contrary to s 97(1) of the Crimes Act 1900 (NSW). The offence carries a maximum penalty of 20 years imprisonment with no standard non-parole period. A further charge of detaining a person with intent to obtain a financial advantage in company (contrary to s 86(2)(a) of the Crimes Act) was placed on a Form 1, meaning the offender admitted guilt to that charge and asked the court to take it into account when determining the sentence for the principal offence.

The facts arose from a premeditated scheme. The offender's co-offender, Ms Shariff, had cultivated a relationship with the victim over several weeks, borrowing $900 from him. On 17 October 2016, she lured him to a meeting under the pretence of repaying the money. The offender, who was significantly larger than the victim, forced his way into the back seat of Ms Shariff's car beside the victim. He threatened to stab the victim, demanded and took his mobile phone and $165 in cash, and obtained the victim's bank card PIN. Ms Shariff then drove to an ATM where she withdrew a further $740 from the victim's account.

The offender was arrested on 23 January 2017 and spent five days in custody before being released on bail. The matter was committed for trial and set for hearing on 12 June 2018. The offender entered his guilty plea on 13 June 2018, the day after the trial was due to commence.

  • What was the appropriate sentence for robbery in company, taking into account the Form 1 offence?
  • How much discount should be applied for a guilty plea entered the day after the trial was due to commence?
  • Whether special circumstances existed to justify a departure from the standard statutory ratio between the non-parole period and the head sentence.
  • Whether the proposed sentence was consistent with sentences imposed in comparable cases.

Decision

His Honour assessed the objective seriousness of the offending as significant. The robbery was premeditated and conducted pursuant to a joint criminal enterprise with Ms Shariff. The offender used his physical size to intimidate the victim, who was of small stature and had an injured hand, and made a threat to stab him. Although no knife was produced or seen, the victim had genuine reason to fear one was present.

The guilty plea was entered at a very late stage, the day after the trial was scheduled to commence. Accordingly, the utilitarian discount applied was only 10 per cent, reflecting the limited practical benefit to the justice system at that point. The offender's subjective circumstances were also considered, including a psychologist's report, character references, the recent death of his father, and the fact that this was his first period of full-time custody.

His Honour found that special circumstances existed to justify a longer-than-standard parole period. The offender's rehabilitation needs were best served in the community under supervision, and the extended parole period would allow for greater oversight following his release. A sentence of two years and eight months (after the 10 per cent discount from three years) was imposed.

On consistency, the court noted that sentencing statistics for comparable offences, with a guilty plea and a Form 1, showed a custody rate of 90 per cent across 751 cases, with terms ranging from 30 months to six years. His Honour was satisfied the sentence imposed fell within that range, while treating the statistics as a guide rather than a determinative benchmark, consistent with the caution expressed in Barbaro and The Queen v Pham.

Orders Made

  • The offender was convicted of robbery in company under s 97(1) of the Crimes Act 1900.
  • The Form 1 offence (detaining with intent to obtain a financial advantage in company, s 86(2)(a)) was formally taken into account.
  • A head sentence of two years and eight months was imposed, commencing 30 November 2018.
  • A non-parole period of one year and eight months was set, commencing 30 November 2018 and expiring 29 July 2020, at which point the offender is to be released on parole.
  • A copy of the psychologist's report by Ms Durkin was directed to accompany the offender's warrant of commitment.

Key Takeaways

  • A Form 1 offence does not result in a separate penalty but increases the weight given to personal deterrence and retribution in sentencing for the principal offence.
  • Entering a guilty plea the day after a trial was scheduled to commence attracted only a 10 per cent utilitarian discount, reflecting the minimal benefit to the justice system at that stage.
  • Special circumstances justifying a departure from the standard statutory non-parole period ratio were found on the basis of the offender's first time in full-time custody and his identified rehabilitation needs, with a longer parole period providing greater community supervision.
  • Sentencing statistics were considered as a consistency check but treated as a blunt instrument, in line with the High Court's guidance in Barbaro v R; Zirilli v R (2014) 253 CLR 58 and The Queen v Pham (2015) 256 CLR 550.
  • Premeditation, participation in a joint criminal enterprise, physical intimidation, and the vulnerability of the victim were all features that bore on the objective seriousness of the robbery in company offence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 86(2)(a), 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Barbaro v R; Zirilli v R (2014) 253 CLR 58
- The Queen v Pham (2015) 256 CLR 550
- R v Kwon [2004] NSWCCA 456
- R v McNaughton (2006) 66 NSWLR 566
- R v Pham [2005] NSWCCA 94
- Veen v The Queen (No 2) (1988) 164 CLR 465