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District Court 26 June 2019

R v Fordham; R v Piukala

[2019] NSWDC 534

Assault & violenceTheft & property
PAROLE PERIOD — STANDARD NON SENTENCE CUSTODY PERIOD

Citation: R v Fordham; R v Piukala [2019] NSWDC 534
Court: District Court of New South Wales
Date: 26 June 2019
Judge: Bennett SC DCJ

Background

Two offenders, referred to here as Fordham and Piukala, pleaded guilty in the Local Court to a charge of aggravated robbery under s 98 of the Crimes Act 1900. The offence involved the assault of a 21-year-old complainant with intent to rob her, during which grievous bodily harm was inflicted using a piece of brick as a weapon. The offence took place at Telopea on 16 August 2017 as part of a joint criminal enterprise involving a third co-offender who was awaiting trial.

The facts involved a premeditated scheme in which the complainant, who had a prior acquaintance with Fordham, was lured under the pretence of a drug purchase. She attended carrying approximately $2,500 in cash and was then subjected to a violent attack. Both offenders were drug-affected at the time of the offending, which the court took into account when assessing personal moral culpability, balanced against the seriousness of the violence.

The two offenders came before the District Court for sentencing proceedings in June 2019. Fordham had been in custody since December 2017. Piukala was already serving sentences for unrelated offences, which required the court to apply totality principles when structuring his sentence.

  • Whether the objective seriousness of the offending fell within the middle range or above it, relative to the standard non-parole period of seven years
  • How to apply the standard non-parole period under the Crimes (Sentencing Procedure) Act 1999 following Muldrock v The Queen
  • What weight to give personal factors including drug dependency, background, and plea of guilty
  • How to apply the totality principle in Piukala's case, given his pre-existing sentences
  • Whether special circumstances existed to justify a longer-than-usual parole period
  • Whether each offender was eligible for referral to the Drug Court

Decision

The court assessed the objective gravity of the offending as above the middle range of seriousness for this type of offence. The attack was planned, involved a weapon, caused grievous bodily harm, and targeted a victim known to one of the offenders, who was used to set up the robbery. These features elevated the offending above the midpoint against which the seven-year standard non-parole period is calibrated.

In applying Muldrock, the court confirmed that the standard non-parole period functions as a legislative guidepost rather than a starting point for mathematical calculation. Consistent with Markarian, the sentencing exercise required an intuitive synthesis of all relevant factors, including the objective gravity of the offence, the offenders' personal circumstances, their drug use, and their pleas of guilty. The court also drew on Bugmy v The Queen and related authorities concerning the weight to be given to background and moral culpability.

The court found special circumstances in Fordham's case, warranting a non-parole period shorter in proportion to the total sentence than the statutory default. The reasoning was that a longer parole period would better support rehabilitation and consolidate any progress made in custody. In Piukala's case, the totality principle required the new sentence to be structured to commence at the conclusion of his existing non-parole periods, ensuring the aggregate did not exceed what was proportionate to his overall criminality.

The court also considered each offender's eligibility under the Drug Court Act 1998 and made referrals to the Drug Court in both cases for assessment as to whether a compulsory drug treatment order was appropriate.

Orders Made

  • Fordham convicted of the offence under s 98 Crimes Act 1900; sentenced to a non-parole period of 5 years commencing 21 December 2017, expiring 20 December 2022, with a further period of 1 year and 9 months, expiring 20 September 2024
  • Piukala convicted of the offence under s 98 Crimes Act 1900; sentenced to a non-parole period of 3 years commencing 20 July 2020, expiring 19 July 2023, with a further period of 3 years and 9 months, expiring 19 April 2027
  • Special circumstances found in Fordham's case
  • Both offenders referred to the Drug Court under s 18B Drug Court Act 1998 for assessment for a compulsory drug treatment order

Key Takeaways

  • The District Court assessed the aggravated robbery as above the middle range of objective seriousness, given the premeditated nature of the attack, the use of an improvised weapon, the infliction of grievous bodily harm, and the exploitation of a prior relationship with the victim.
  • Under the framework confirmed in Muldrock v The Queen, the standard non-parole period operates as one of several legislative guideposts and does not anchor a staged or arithmetical sentencing calculation; the sentencing court must engage in an intuitive synthesis of all relevant factors.
  • Drug intoxication at the time of the offence is a factor relevant to personal moral culpability, but the court must weigh it against the gravity of the offending rather than treating it as a straightforward mitigating circumstance.
  • Where an offender is already serving multiple sentences, the totality principle requires the new sentence to be structured, including in its commencement date, so that the combined effect does not exceed what is proportionate to the offender's overall criminal conduct.
  • Referral to the Drug Court under s 18B of the Drug Court Act 1998 remains available even where significant terms of imprisonment are imposed, subject to assessment of eligibility and suitability.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 98 (aggravated robbery)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, Part 4 Division 1A
- Drug Court Act 1998 (NSW), ss 5A, 18B
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)

Cases:
- Bugmy v The Queen [2013] HCA 37
- Markarian v The Queen [2005] HCA 25
- Muldrock v The Queen [2011] HCA 39
- R v Qutami [2001] NSWCCA 353
- Tepania v The Queen [2018] NSWCCA 247
- Veen v R (No 2) (1988) 164 CLR 465
- White v The Queen [2016] NSWCCA 190