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District Court 24 January 2019

R v Papuni

[2019] NSWDC 269

Assault & violenceTheft & property

Citation: R v Papuni [2019] NSWDC 269
Court: District Court of New South Wales
Date: 24 January 2019
Judge: M L Williams SC DCJ

Background

The offender, a man born in 1979, appeared unrepresented for sentencing on a single charge of robbery in company under s 97(1) of the Crimes Act 1900, which carries a maximum penalty of 20 years imprisonment. He had pleaded guilty at the earliest possible opportunity, entitling him to a 25% discount on any term of imprisonment for the utilitarian value of that plea.

The offence occurred in the early morning at a residential apartment building in Surry Hills. The offender and two co-offenders observed the victim leaving his unit, followed him to the stairwell, and confronted him. During the robbery, the offender grabbed the victim's mobile phone, struck him, and the co-offenders restrained the victim from retreating. The victim's wallet, backpack, and phone were stolen before he escaped to a security officer.

The offender had a modest prior record, including an assault conviction in 2008 and section 9 bonds for goods in custody and shoplifting offences from 2017. He was on a section 9 bond at the time of the offending. He had been in custody from his arrest on 2 April 2018 until 18 January 2019, a period of approximately nine months.

  • What was the appropriate sentence for a single offence of robbery in company, having regard to the R v Henry guideline judgment?
  • What weight should be given to the aggravating factors, including commission of the offence at the victim's home and while on conditional liberty?
  • What weight should be given to the mitigating factors, including the early guilty plea, expressions of remorse, and prospects of rehabilitation?
  • Whether the sentence could be served by way of an Intensive Corrections Order (ICO) rather than full-time custody.

Decision

His Honour assessed the objective seriousness of the offence as below the mid-range. Relevant features included the absence of weapons, a degree of planning evident from CCTV footage showing the offenders waiting in the vicinity, direct participation by all three co-offenders, actual violence inflicted, and the distress and physical injury caused to the victim. The offending ended only when the victim managed to escape.

The Crown identified two statutory aggravating factors: the actual or threatened use of violence, and commission of the offence in or near the home of the victim. Applying R v Lulham, the court confirmed that the "home" aggravating factor encompasses areas immediately surrounding the residence, not only the unit itself. The offender was also on conditional liberty at the time, constituting a further aggravating factor.

On the mitigating side, the court accepted the early guilty plea and the offender's expressions of remorse. His Honour found good prospects of rehabilitation and concluded that the offender was unlikely to re-offend, noting his stated drug-free period and his desire to return to work. His drug use at the time of the offending was taken into account as a relevant circumstance.

His Honour accepted the Crown's position that a term of imprisonment was required, but also that the sentence could appropriately be served by way of an ICO. An 18-month sentence was imposed and directed to be served as an ICO with standard and additional conditions, including abstention from illicit drugs and supervision by Community Corrective Services. No further action was taken on the two section 9 bond breaches.

Orders Made

  • The offender was convicted of robbery in company.
  • An 18-month sentence of imprisonment was imposed.
  • Pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999, the sentence was directed to be served by way of an Intensive Corrections Order commencing 24 January 2019.
  • Standard conditions applied: no further offending; supervision and compliance with directions of Community Corrective Services.
  • Additional conditions: abstain from illicit drugs; report to the City office of Community Corrective Services by 5pm on 31 January 2019.
  • No further action taken on two section 9 bond breaches.

Key Takeaways

  • The District Court confirmed that the aggravating factor of committing an offence at "the home of the victim," as discussed in R v Lulham, extends to areas immediately surrounding the actual residence, such as a stairwell or entry area of an apartment building.
  • An early guilty plea at the first available opportunity attracted a 25% discount on the sentence, consistent with the utilitarian value recognised in sentencing principles.
  • Where objective seriousness is assessed as below the mid-range and positive subjective factors are present (including remorse, rehabilitation prospects, and drug dependency context), a court may consider an ICO as a means of serving a term of imprisonment.
  • Being on a section 9 bond at the time of the offending constituted a statutory aggravating factor of breach of conditional liberty, which the court weighed against the offender.
  • Upholding the R v Henry guideline framework, the court applied the relevant aggravating and mitigating factors without requiring a standard non-parole period, as none applies to the s 97(1) offence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(1) (robbery in company)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 7(1)

Cases
- R v Henry (1999) 46 NSWLR 346 (guideline judgment on robbery)
- R v Lulham (2016) 263 A Crim R 287 (meaning of "home of victim" aggravating factor)