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District Court 5 July 2019

R v Mafi

[2019] NSWDC 340

Assault & violenceTheft & property
SENTENCING — AGGRAVATED ROBBERY INFLICT ACTUAL BODILY HARM

Citation: R v Mafi [2019] NSWDC 340
Court: District Court of New South Wales
Date: 5 July 2019
Judge: Weinstein SC DCJ

Background

The offender pleaded guilty to a single charge of aggravated robbery inflicting actual bodily harm under section 95(1) of the Crimes Act 1900, which carries a maximum penalty of 20 years imprisonment. The offence occurred on 11 July 2018 at a hotel poker machine room in Enmore, where the offender and a co-offender approached a man who had won money on the poker machines, demanded his winnings, struck him in the mouth and chin causing a laceration, and forcibly took two poker machine tickets totalling just over $430.

The offender was arrested on 26 July 2018 and had been in custody for approximately 344 days at the time of sentencing. He had a lengthy criminal history dating from childhood, including convictions for robbery, assault, theft, and breaches of Apprehended Violence Orders.

The sentencing proceedings involved four exhibits, including a detailed forensic psychology report, a personal reference, and a Sentencing Assessment Report. Those materials painted a picture of significant childhood disadvantage, including ongoing physical and sexual abuse from a young age, long-term drug dependence (particularly methamphetamine, or "ice"), and limited formal education.

  • What was the appropriate head sentence for aggravated robbery inflicting actual bodily harm, having regard to the objective seriousness of the offence and the statutory maximum?
  • What weight should be given to the early guilty plea under the Crimes (Sentencing Procedure) Act 1999?
  • What mitigating factors arose from the offender's personal history, including childhood abuse, drug dependence, and prospects of rehabilitation?
  • Whether special circumstances existed to justify a non-parole period that departed from the statutory ratio, producing a longer balance of sentence for supervision and rehabilitation?
  • Whether a non-custodial or community-based order was appropriate, or whether imprisonment was required for the protection of the community?

Decision

Weinstein SC DCJ assessed the objective seriousness of the offence as above the midrange. The robbery was carried out in company, the victim sustained actual bodily harm, and the offender was in breach of conditional liberty at the time. The financial loss to the victim, while not trivial, was not substantial, and the offence was unplanned.

The court attributed significant weight to the offender's subjective case. The forensic psychologist's report documented extensive childhood sexual and physical abuse, which the court accepted as genuinely mitigating under the principles in Bugmy v The Queen (2013). The offender had suffered serious disadvantage throughout his development, including entrenched drug dependence linked to that background. The court found genuine remorse and good prospects of rehabilitation, partly based on the offender's engagement with drug treatment programmes while in custody.

A 25% discount was applied to the sentence to reflect the early guilty plea. The court declined to suspend the sentence or impose a community-based order, concluding that the offender's risk of reoffending and the safety of the community were not more likely to be addressed outside custody. The court noted the offender was assessed at a medium risk of reoffending and had not yet demonstrated sustained abstinence outside a controlled environment.

Special circumstances were found to exist, primarily the offender's need for supervised rehabilitation from drug dependence and the lasting effects of childhood abuse and disadvantage. This justified a non-parole period shorter than the usual statutory ratio, providing a longer balance of sentence during which the offender would be subject to supervision and support on release.

Orders Made

  • The offender was convicted of aggravated robbery inflicting actual bodily harm under section 95(1) of the Crimes Act 1900.
  • Sentenced to 3 years imprisonment (after a 25% discount for early guilty plea).
  • Sentence backdated to 26 July 2018 (date taken into custody); sentence to expire 25 July 2021.
  • Non-parole period of 18 months set, expiring 25 January 2020, with eligibility for release on that date.
  • Special circumstances found: the offender's prospects of rehabilitation from drug dependence and the physical and sexual abuse and disadvantage suffered in childhood.

Key Takeaways

  • The District Court confirmed that childhood sexual and physical abuse can carry significant mitigating weight in sentencing under the Bugmy principles, even for an offender with a lengthy criminal history.
  • A 25% discount for an early guilty plea applied under the Crimes (Sentencing Procedure) Act 1999, reducing what would otherwise have been a longer head sentence for an offence assessed above the midrange of objective seriousness.
  • Special circumstances were established where the offender's need for supervised rehabilitation from entrenched drug dependence, combined with the lasting effects of childhood trauma, justified a non-parole period departing from the standard statutory ratio.
  • Where an offender is assessed at a medium risk of reoffending and has demonstrated abstinence only in a controlled custodial setting, community safety considerations can outweigh arguments for a community-based order, even in the presence of genuine remorse and good rehabilitation prospects.
  • The absence of a standard non-parole period for section 95(1) aggravated robbery meant the court was required to exercise the full range of sentencing discretion by reference to the statutory maximum, objective seriousness, and the full range of subjective factors.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 95(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A, 24, 25D, 66

Cases
- Azzi v R [2008] NSWCCA 169
- Bugmy v The Queen [2013] HCA 37
- Chung v R [2017] NSWCCA 48
- Markarian v The Queen [2005] HCA 25
- McDonald v R [2015] NSWCCA 280
- Muldrock v The Queen (2011) 244 CLR 120
- R v Henry [1999] NSWCCA 111
- R v Pullen [2018] NSWCCA 264
- Veen v The Queen [No 2] (1988) 164 CLR 465