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District Court 18 March 2019

R v Magoin

[2019] NSWDC 268

Assault & violenceTheft & property

Citation: R v Magoin [2019] NSWDC 268
Court: District Court of New South Wales
Date: 18 March 2019
Judge(s): Bennett SC DCJ

Background

The offender, a 23-year-old man, pleaded guilty in the Local Court to one charge of robbery in company under s 97(1) of the Crimes Act 1900, arising from an attack in Auburn on 1 December 2017. He and two others approached the victim from behind near Auburn railway station, placed an arm around his neck, punched him repeatedly in the face, and stole his wallet, watch, mobile phone, and laptop bag. The victim lost three teeth in the attack.

The offender also asked the court to take into account a second, earlier robbery under a Form 1 procedure. This offence occurred at Strathfield on 24 October 2017, when he and an accomplice attacked a Korean overseas student walking home from a bus stop, covering his eyes, punching him around 20 times, and kicking him once he fell to the ground before stealing his backpack and wallet.

DNA evidence linked the offender to both attacks. He had an extensive prior record spanning seven pages, including prior control orders for sexual offences involving a minor, assault offences, and breaches of good behaviour bonds, which had already resulted in concurrent sentences served during pre-sentence custody for the present matters.

  • What was the appropriate starting point for the sentence on the principal robbery-in-company offence, having regard to the objective seriousness of the conduct?
  • What discount applied for the guilty plea, and how should the Form 1 (taken-into-account) offence affect the sentence?
  • How should the court treat pre-sentence custody, including two months served concurrently on unrelated sentences triggered by breaches of existing bonds?
  • What weight should be given to the offender's prospects of rehabilitation, remorse, and personal circumstances?

Decision

Bennett SC DCJ characterised both offences as serious. Both victims were attacked at night while walking home from public transport, by multiple offenders acting together, with sustained physical violence causing significant injury. The Auburn robbery in particular resulted in the victim losing teeth. The court treated the absence of a standard non-parole period under the Crimes (Sentencing Procedure) Act 1999 as leaving it to apply general sentencing principles.

On the Form 1 offence, the court acknowledged that bringing the Strathfield robbery into account provided the offender with a substantial benefit by avoiding separate punishment for a serious offence. In accordance with the approach in Attorney General's Application No 1 of 2002, the court increased the sentence beyond what would have been imposed on the principal offence alone, while crediting the offender for agreeing to that course.

The court applied a guilty plea discount of 25 per cent, rounding down slightly in the offender's favour. On remorse, the court noted that while no direct evidence of contrition was presented, the guilty plea and the Form 1 arrangement demonstrated at least a measure of regret, though it was equally consistent with pragmatic acceptance given the strength of the DNA evidence. Rehabilitation prospects were assessed with caution, given the prior record and the absence of confident grounds for optimism about reoffending.

Pre-sentence custody was back-dated with the sentence commencing on 12 April 2018, two months after his arrest date of 12 February 2018. This approach accumulated the present sentence entirely upon the two months of concurrent sentences already served, in accordance with the principles discussed in Callaghan [2006] NSWCCA 58.

Orders Made

  • The offender was convicted of robbery in company under s 97(1) of the Crimes Act 1900.
  • Non-parole period of 3 years imprisonment, commencing 12 April 2018, expiring 11 April 2021.
  • Balance of term of 2 years, commencing 12 April 2021, expiring 11 April 2023.
  • Total head sentence of 5 years imprisonment.
  • Referred to the Drug Court, given more than 18 months of the sentence remained to be served.
  • Exhibits to remain on file for 28 days or such further period as required.

Key Takeaways

  • The District Court confirmed that where a Form 1 offence is taken into account, the sentence on the principal offence must be increased to reflect that additional criminality, while the offender also receives credit for agreeing to that procedure.
  • A guilty plea discount of 25 per cent was applied and rounded slightly in the offender's favour, consistent with established sentencing practice under the Crimes (Sentencing Procedure) Act 1999.
  • Where an offender serves concurrent sentences for unrelated matters during pre-sentence custody, the sentencing court retains a discretion about the commencement date of the new sentence, as confirmed in Callaghan [2006] NSWCCA 58.
  • Rehabilitation prospects are not assessed in isolation from prior criminal history. An extensive record, including prior sentences involving violence and sexual offending against a minor, informed a cautious assessment of the offender's future prospects.
  • Under Bugmy v The Queen [2013] HCA 37 and Veen (No 2) [1988] HCA 14, the court balanced the objective seriousness of the offending against the personal circumstances of the offender without allowing prior history to result in a disproportionate sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(1) (robbery in company)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999, No 1 of 2002 [2002] NSWCCA 518
- Bugmy v The Queen [2013] HCA 37
- Callaghan [2006] NSWCCA 58
- Engert (1995) 84 A Crim R 67
- Henry (1999) 46 NSWLR 346
- Qutami [2001] NSWCCA 353
- Veen (No 2) [1988] HCA 14