Citation: R v Piukala; R v Johnson [2019] NSWDC 143
Court: District Court of New South Wales
Date: 15 February 2019
Judge: M L Williams SC DCJ
Background
In October 2017, the principal offender entered the administration office of a girls' high school in Auburn wearing a balaclava and holding a hunting knife. He pressed the knife against the stomach of a female school administrator, demanded cash, and left with approximately $5,180. The victim's registration of the getaway car's number plate, combined with CCTV footage, led to the identification and arrest of both offenders.
The driver of the getaway car pleaded guilty as an accessory after the fact. He had driven the group to the school at the request of a third party, and when the principal offender returned to the vehicle wearing the balaclava and carrying the knife, the driver understood a robbery had occurred but nonetheless drove the offenders away from the scene.
Both men appeared before the District Court for sentencing. Two co-offenders, sisters whose information about the school's cash had facilitated the robbery, had already been sentenced separately.
Legal Issues
- What sentence was appropriate for the principal offender, convicted of robbery armed with an offensive weapon under s 97(1) of the Crimes Act 1900 (maximum 20 years, no standard non-parole period)?
- What sentence was appropriate for the accessory after the fact, who was liable to the same maximum penalty as a principal under ss 345 and 347 of the Crimes Act 1900?
- Whether special circumstances existed in either case to justify a non-parole period shorter than the standard statutory proportion?
- How should the subjective circumstances of each offender, including drug addiction, mental health, and rehabilitation efforts, be weighed in sentencing?
Decision
The court treated the maximum penalty of 20 years as the relevant sentencing yardstick and applied the purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999. The principal offender had entered the school in a balaclava, brandished a knife against a staff member, and threatened her directly. The court took the victim impact statement into account in the manner described by Basten JA in R v Thomas, acknowledging the statement was untested but accepting it as compelling evidence of the serious and lasting harm suffered by the victim, who had gone from being a working single parent to being unable to leave her home.
For the principal offender, the court acknowledged his youth (24 years of age), his drug addiction involving ice, and a diagnosis by Dr Furst that was relevant to specific deterrence, though it could only moderately reduce his moral culpability in the sense described in DPP (Cth) v De La Rosa. His criminal history, which included prior juvenile control orders for serious violence, and the nature of the offending itself meant a substantial custodial term was required.
For the accessory, the court noted his longer criminal history, including a prior robbery in company, but also gave weight to his full-time employment, his genuine expressions of remorse, his steps to address drug dependency, and the severing of ties with co-offenders. His mental health diagnosis and the cessation of prescribed medication were also considered relevant to his decision-making at the time of the offence, though the court did not treat rehabilitation alone as constituting exceptional circumstances, consistent with R v Tran.
Special circumstances were found in both cases. For the accessory, his employment history and rehabilitation efforts supported a longer parole period to facilitate reintegration. For the principal offender, the fact that this was his first period of adult custody and his identified need for ongoing treatment and rehabilitation justified the finding.
Orders Made
Johnson (accessory after the fact):
- Convicted of the offence
- Sentenced to 2 years imprisonment, commencing 15 February 2019 and expiring 14 February 2021
- Non-parole period of 1 year, expiring 14 February 2020
- Special circumstances found
Piukala (principal offender):
- Convicted of the offence
- Sentenced to 3 years and 4 months imprisonment, commencing 30 November 2017 and expiring 29 March 2021
- Non-parole period of 2 years and 3 months, expiring 29 February 2020
- Special circumstances found
Key Takeaways
- A conviction as an accessory after the fact under ss 345 and 347 of the Crimes Act 1900 carries the same maximum penalty as the principal offence, and the sentencing court must treat the 20-year maximum as a genuine yardstick rather than a notional ceiling.
- Victim impact statements in armed robbery matters are taken into account in accordance with R v Thomas, with the court accepting them as evidence of harm notwithstanding that they are not subject to cross-examination.
- The District Court confirmed, consistent with R v Tran, that rehabilitation efforts, even genuine and sustained ones, do not automatically constitute exceptional circumstances justifying a departure from the ordinary sentencing range.
- Drug addiction and an untreated mental health condition may reduce the weight given to specific deterrence where supported by medical evidence, but the extent to which moral culpability is moderated remains limited, as explained in DPP (Cth) v De La Rosa.
- Special circumstances were established in both cases, reflecting the individual needs of each offender for extended post-release supervision, particularly where an offender is serving his first adult custodial term or has demonstrated genuine progress toward rehabilitation.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 97(1), 345, 347
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
Cases:
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- R v Henry (1999) 46 NSWLR 346
- R v Tran [1999] NSWCCA 109
- R v Thomas [2007] NSWCCA 269