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District Court 26 March 2019

R v Kuol

[2019] NSWDC 181

Assault & violenceTheft & property
CRIME SENTENCE AGGRAVATED ROBBERY SPECIAL CIRCUMSTANCES

Citation: R v Kuol [2019] NSWDC 181
Court: District Court of New South Wales
Date: 26 March 2019
Judge: Colefax SC DCJ

Background

The offender, a 20-year-old man born in Sudan who came to Australia at approximately age five, appeared for sentencing on a single charge of aggravated robbery under s 95 of the Crimes Act 1900 (NSW). The circumstance of aggravation was the use of corporal violence. The maximum penalty for that offence is 20 years imprisonment, and no standard non-parole period applies.

In the early hours of 11 June 2018, the offender and friends were returning home by train after a night out in the city. The victim, a 20-year-old man travelling alone, was using his phone while carrying a backpack. The offender confronted him, shoved him, and punched him in the eye, causing the victim's turban to come off during the struggle. The offender then took the victim's phone and backpack.

The offender pleaded guilty at an early stage. The sentencing hearing involved an agreed statement of facts, psychological and other reports, and the offender giving evidence in the witness box. His background included a deeply troubled childhood in Sudan, significant substance abuse from a young age, and a minor prior criminal record.

  • The appropriate objective seriousness of the offending within the range for aggravated robbery involving corporal violence, guided by R v Henry (1999) 46 NSWLR 346
  • Whether the victim was targeted because of his ethnicity, and whether that constituted an aggravating factor
  • The appropriate discount for an early guilty plea
  • Whether special circumstances existed to justify varying the standard ratio between the non-parole period and the head sentence
  • The weight to be given to the offender's background, including childhood trauma, substance abuse, remorse, and rehabilitation prospects

Decision

The District Court assessed the objective seriousness of the offence as below the level conceded by the offender's own advocate. His Honour placed it equidistant between the bottom and the middle of the range for offences of this type, noting that far more serious instances of aggravated robbery with corporal violence exist. The presence of a companion was not treated as an aggravating factor because the Crown did not assert that the victim was aware of that person's presence.

On the question of the victim's ethnicity, the court was not satisfied beyond reasonable doubt that the offender had targeted the victim because of his Indian background, despite a remark made to police. His Honour considered it more probable that the victim was chosen because he was alone.

The offender's Sudanese background, childhood exposure to violence and sexual abuse, absent father, poor guidance from older siblings, significant polysubstance abuse from a young age, and genuine remorse were all considered in mitigation. His Honour expressed concern that the psychological report had insufficiently addressed the likely connection between the offender's childhood trauma and his subsequent substance abuse. The court found the offender's rehabilitation prospects to be reasonably good, supported by family and community ties, and accepted his evidence and remorse as genuine.

A starting sentence of three years imprisonment was reduced by 25 percent to 27 months owing to the early guilty plea. His Honour found special circumstances, citing the offender's age and the desirability of a longer parole period to support rehabilitation, and adjusted the non-parole period to 12 months accordingly.

Orders Made

  • Sentence of 27 months imprisonment imposed for aggravated robbery contrary to s 95 of the Crimes Act 1900 (NSW)
  • Sentence backdated to 21 June 2018, the date of arrest
  • Non-parole period of 12 months, with the offender eligible for parole on 20 June 2019
  • Balance of sentence of 15 months, commencing 21 June 2019
  • Special circumstances found, varying the standard non-parole ratio

Key Takeaways

  • The District Court independently assessed objective seriousness rather than accepting the concession made by the offender's own solicitor, placing the offending lower in the range than defence counsel had acknowledged.
  • Under R v Henry, the Court of Criminal Appeal's guideline judgment remains the relevant reference point for sentencing aggravated robbery offences under s 95 of the Crimes Act 1900 (NSW), in the absence of a standard non-parole period.
  • A finding of special circumstances can be supported by the offender's youth and the rehabilitative value of an extended parole period, even where the offending itself is serious.
  • Ethnic targeting as an aggravating factor requires proof beyond reasonable doubt; a remark made to police was insufficient on its own to establish that standard here.
  • Childhood trauma, displacement, and a background of poverty and deprivation were treated as relevant to the offender's moral culpability and rehabilitation prospects, though the court noted the psychological report had inadequately explored the link between that trauma and subsequent substance abuse.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 95 (aggravated robbery)

Cases
- R v Henry (1999) 46 NSWLR 346 (Court of Criminal Appeal guideline judgment on sentencing for robbery offences)