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District Court 7 June 2019

R v Mokomoko

[2019] NSWDC 258

Assault & violenceTheft & property

Citation: R v Mokomoko [2019] NSWDC 258
Court: District Court of NSW
Date: 7 June 2019
Judge: Grant DCJ

Background

The offender, a 20-year-old man who had been 18 at the time of the offence, appeared for sentencing on one count of robbery contrary to s 94 of the Crimes Act 1900, carrying a maximum penalty of 14 years imprisonment. He had pleaded guilty at the earliest opportunity and had spent 210 days in pre-sentence custody referable to the offence.

The offending occurred around 4am on 20 January 2018 near Warringah Mall. The offender approached a man waiting at a bus stop after his work shift, made threatening remarks, and then threw a punch that only brushed the victim's ear. He grabbed the victim's backpack from his shoulder, but the bag was recovered intact and nothing was missing. Security guards detained the offender until police arrived.

The offender had grown up in New Zealand in difficult circumstances, with early exposure to alcohol, family violence and substance abuse. A psychologist's report noted he likely met the criteria for ADHD and had a significant history of alcohol and drug use from a young age. He was on two probation orders at the time of the offence.

  • Whether the objective seriousness of the robbery fell just below the mid-range (as the Crown submitted) or in the low range
  • What discount applied for the early guilty plea
  • Whether the offender's subjective circumstances, including youth, deprived background and rehabilitation prospects, warranted a community-based sentence rather than imprisonment
  • Whether a community correction order was an appropriate sentencing disposition under the amended Crimes (Sentencing Procedure) Act 1999

Decision

Grant DCJ applied a 25% discount to the sentence in recognition of the early guilty plea, which was agreed between the parties. On objective seriousness, his Honour disagreed with the Crown's characterisation that the offending fell just below the mid-range. The Court placed it in the low range, noting the incident was brief, opportunistic and unplanned, that the punch only brushed the victim's ear, and that no property was ultimately lost.

On subjective matters, the Court accepted that the offender's deprived upbringing, early exposure to substance abuse and violence, youth, and time already spent in custody were all significant mitigating factors. The aggravating feature was that he was on two probation orders at the time of the offending.

Grant DCJ drew on the 2018 amendments to the Crimes (Sentencing Procedure) Act 1999 and the Court of Criminal Appeal's analysis in The Queen v Pullen [2018] NSWCCA 264, which addressed the purpose and scope of the new community-based sentencing framework. His Honour also quoted King CJ in Yardley v Betts (1979) for the proposition that successful rehabilitation contributes directly to community protection, and that severity is not the default sentencing norm.

Taking all factors into account, the Court determined that a community correction order was the appropriate sentencing outcome. Although an initial assessment found the offender unsuitable for community service work, the Court proceeded to impose a two-year community correction order with conditions tailored to his rehabilitative needs, including supervision, treatment and abstention from illicit drugs.

Orders Made

  • The offender is convicted of robbery
  • A community correction order imposed pursuant to s 8(1) of the Crimes (Sentencing Procedure) Act 1999, for a duration of two years commencing 7 June 2019
  • Conditions of the order:
  • Must not commit any offence
  • Must appear before the court if called upon during the term of the order
  • Must participate in a rehabilitation or treatment program as directed
  • Must abstain from illicit drugs
  • Must submit to supervision by a community corrections officer
  • The offender is to report to the City Community Corrections office within 7 days of release

Key Takeaways

  • The District Court placed this robbery in the low range of objective seriousness, declining to adopt the Crown's higher characterisation, on the basis that the offending was opportunistic, brief, involved only glancing physical contact and resulted in no actual loss of property.
  • A 25% guilty plea discount applied where both parties agreed the plea was entered at the earliest opportunity.
  • Under the 2018 amendments to the Crimes (Sentencing Procedure) Act 1999, the framework explicitly favours community-based sentences with tailored conditions over short prison terms where the offender's criminogenic needs can be addressed in the community.
  • Rehabilitation and community protection are not competing considerations: the Court applied the principle from Yardley v Betts that effective rehabilitation directly enhances community safety.
  • A finding of unsuitability for community service work did not prevent the imposition of a community correction order, where other appropriate conditions, including supervision, treatment and drug abstention, could be attached instead.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 94 (robbery)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 8(1)

Cases
- The Queen v Pullen [2018] NSWCCA 264
- Yardley v Betts (1979) 1 A Crim R 329