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District Court 6 December 2019

R v Sua

[2019] NSWDC 794

Assault & violence
PAROLE PERIOD — STANDARD NON

Citation: R v Sua [2019] NSWDC 794
Court: District Court of New South Wales
Date: 6 December 2019
Judge(s): Bennett SC DCJ

Background

This decision concerned the sentencing of Salec Sua, the last of five co-offenders to be sentenced for a violent incident at a hotel in Rooty Hill in the early hours of 21 July 2018. The group had attended a house party before arriving at the hotel together, having consumed alcohol. The victims included two patrons and the hotel's duty manager, who was injured while attempting to intervene.

Sua pleaded guilty in the Local Court to recklessly causing grievous bodily harm in company, contrary to s 35(1) of the Crimes Act 1900. A second charge of assault occasioning actual bodily harm in company upon a separate victim was placed on a Form 1 to be taken into account at sentencing rather than prosecuted separately.

The entire incident was captured on closed-circuit television, which the court viewed on multiple occasions. The co-offenders had already been sentenced, and a key task for the court was to determine an appropriate sentence for Sua while maintaining consistency with those earlier outcomes.

  • What was the appropriate sentence for the principal offence of recklessly causing grievous bodily harm in company, relative to the standard non-parole period of five years?
  • How should the Form 1 offence (assault occasioning actual bodily harm in company) be reflected in the overall sentence?
  • What discount applied as a result of the early guilty plea entered in the Local Court?
  • Were there special circumstances justifying a non-parole period that departs from the statutory ratio, thereby extending the parole period?
  • How did parity with the sentences imposed on co-offenders bear on the appropriate sentence for Sua?

Decision

Bennett SC DCJ convicted Sua of recklessly causing grievous bodily harm in company and imposed a sentence of imprisonment totalling four years and six months, with a non-parole period of two years and three months. The court found special circumstances, justifying a parole period equal in length to the non-parole period, well beyond the standard one-third ratio. The court pointed to Sua's age, prospects of rehabilitation, demonstrated remorse, strong community support, and the particular utility of a longer supervised release period.

The 25 per cent discount for the early guilty plea entered in the Local Court was applied to the principal offence. The Form 1 offence increased the overall sentence beyond what would have been imposed for the principal charge alone. Bennett SC DCJ noted that Sua should receive the benefit of the Form 1 procedure, both for the efficiency it provided and as a reflection of some rehabilitative prospects, though the increase to the sentence had to reflect the community's entitlement to retribution for the full range of offending.

On the question of co-offender parity, the court conducted a careful comparison with the sentences imposed on Pio Misa, Dahcell Ramos, and Jimmy Vaafusuaga. The court also addressed the sentence imposed in the Local Court on Timothy Willett, concluding that Willett's lesser charges, lower level of involvement, and the jurisdictional constraints of the Local Court meant parity with his sentence did not raise a significant concern. The more material comparison was with the three District Court co-offenders.

The court rejected the submission that Sua's involvement would have been limited to a verbal altercation. It found, based on the CCTV footage, that he would have played a greater role had he not been held back by security. The court also rejected as unreliable his claimed limited recollection of events, preferring the account in the sentencing assessment report. Sua's prior history included non-compliance with conditional liberty and revocation of parole for an earlier riot offence, which did not aggravate the objective seriousness of the current offending but limited the leniency otherwise available and was relevant to specific deterrence.

Orders Made

  • Sua convicted of recklessly causing grievous bodily harm in company contrary to s 35(1) of the Crimes Act 1900.
  • Sentenced to imprisonment with a non-parole period of 2 years and 3 months, commencing 2 July 2019, with eligibility for parole from 1 October 2021.
  • Upon a finding of special circumstances, a parole period of 2 years and 3 months to commence at the expiration of the non-parole period, expiring 1 January 2024.
  • Total sentence: 4 years and 6 months.
  • Form 1 (assault occasioning actual bodily harm in company) certified and taken into account.
  • Sentence backdated to 2 July 2019 to account for 157 days of pre-sentence custody.

Key Takeaways

  • The District Court confirmed that a Form 1 offence increases the sentence for the principal charge, with the increase calibrated to reflect specific deterrence and the community's entitlement to retribution for the full range of the offender's misconduct, following the principles in Attorney General's Application No 1 of 2002.
  • A finding of special circumstances permitted the parole period to be extended beyond the standard statutory ratio, with the court anchoring that finding in the offender's youth, rehabilitation prospects, remorse, and the value of supervised reintegration.
  • Where a co-offender was sentenced in the Local Court on lesser charges and was subject to that court's jurisdictional limits, parity between that sentence and a District Court sentence on more serious charges did not arise as a live concern.
  • Prior non-compliance with conditional liberty, including revocation of parole for earlier offending, did not elevate the objective seriousness of the current offence but remained relevant to the assessment of specific deterrence and constrained the degree of leniency otherwise available.
  • Sentencing courts may decline to accept an offender's account of limited involvement where CCTV footage and independent reports, such as a sentencing assessment report, provide a more reliable basis for factual findings.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 35(1), 59(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 33, 37, Pt 4 Div 1A

Cases
- Attorney General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518
- Muldrock v R [2011] HCA 39
- Tepania v R [2018] NSWCCA 247