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District Court 9 August 2019

R v Tuiono

[2019] NSWDC 918

Theft & propertyTraffic & drivingFirearms & weaponsPublic order & justice offences
CRIME SENTENCE ROBBERY ARMED WITH AN OFFENSIVE WEAPON DRIVE WHILST DISQUALIFIED AGGRAVATING FEATURES SUBJECTIVE MATTERS

Citation: R v Tuiono [2019] NSWDC 918
Court: District Court of NSW
Date: 9 August 2019
Judge: King SC DCJ

Background

The offender, a man aged approximately 29, was sentenced for robbery armed with an offensive weapon, together with a driving offence and the revocation of two suspended sentence bonds. The principal offence arose from an elaborate scheme in which the offender used an online car-sales platform to contact sellers of high-end luxury vehicles, posing as a prospective buyer named "Jason."

On 29 May 2018, the offender attended a private seller's home in South Hurstville and requested a test drive of a Mercedes C63 valued at approximately $120,000. During the drive, he deviated from the agreed route, produced an object from a bag that the passenger believed to be a firearm, pointed it at the passenger's waist, and demanded the key fob and the passenger's mobile phone before ordering him from the vehicle. The Crown accepted that it could not prove beyond reasonable doubt that the object was an actual dangerous weapon.

At the time of the offending, the offender was subject to a Drug Court section 9 bond (which had already been dealt with) and two section 12 suspended sentence bonds from the Parramatta Local Court. Those bonds related to a prior wanton or furious driving causing bodily harm offence and a prior drive-while-disqualified offence. The offender requested that both section 12 bonds be revoked, and the court revoked them on 7 August 2019, bringing all matters forward for sentence together.

  • What was the appropriate aggregate sentence for the principal offence of armed robbery, the driving offence on the section 166 certificate, and the indicative sentences for the revoked section 12 bond matters?
  • Whether the guideline judgment in R v Henry applied, and how it should be distinguished on the facts.
  • Whether the principles from Bugmy, Fernando, and Henry operated to reduce the sentence in light of the offender's subjective circumstances.
  • Whether special circumstances existed to justify a departure from the standard non-parole period to balance of term ratio.

Decision

King SC DCJ found the armed robbery to be a planned, commercially motivated offence of considerable objective seriousness. The court noted that the offender had been monitoring high-end Mercedes vehicles on the Carsales platform for at least several days before the offence, had attended with a concealed weapon ready for deployment during any test drive, and had targeted a car worth approximately $120,000. Although no actual violence was used, a significant threat of violence was deployed to compel the victim's compliance.

The court distinguished the guideline judgment in R v Henry on three grounds: the offender was not a young person, the offending was premeditated rather than opportunistic, and the guideline cases in Henry had involved a discount of only 10% whereas here a 25% discount applied for the early guilty plea. The court also declined to apply the principles from Bugmy and Fernando in a way that significantly reduced the sentence, noting the relevant cases were distinguishable on their facts.

The court found special circumstances warranting a reduction in the non-parole period below the statutory default ratio, acknowledging the need for the offender to have a longer period of supervised release on parole given the combination of offences and the need for rehabilitation. The reduction amounted to approximately eight and a half months off the non-parole period.

The aggregate sentence was structured to encompass the principal offence, the section 166 driving matter, and the indicative sentences for the two revoked section 12 bond matters. The court did not assign separate commencement and expiry dates to the indicative sentences, consistent with the aggregate sentencing framework.

Orders Made

  • Convicted of robbery armed with an offensive weapon (s 97(1) Crimes Act 1900).
  • Convicted of driving a motor vehicle during a disqualification period, second offence (s 54(1)(a) Road Transport Act 2013).
  • Aggregate sentence of six years and three months' imprisonment, commencing 8 June 2018.
  • Non-parole period of four years, expiring 7 June 2022 (first eligible date for parole).
  • Balance of term of two years and three months, with the total sentence expiring 7 September 2024.
  • Both section 12 bonds revoked; indicative sentences imposed for the underlying offences and taken into account in the aggregate sentence.
  • Automatic licence disqualification applied in respect of the driving offence.

Key Takeaways

  • The District Court held that R v Henry was distinguishable where the offender was not a young person, the offending was carefully premeditated over several days, and the sentencing discount for the guilty plea was substantially higher than the discount underpinning the guideline range.
  • A robbery that involves no actual physical violence may still attract a significant sentence where a weapon (even one of uncertain nature) is deliberately concealed, produced during the offence, and used to threaten a victim in a planned and commercially motivated scheme.
  • The principles in Bugmy and Fernando, which address the relevance of social disadvantage and Indigenous background to sentencing, do not operate as a universal mitigant; the court found those authorities distinguishable on the facts here.
  • Special circumstances can justify reducing the non-parole period below the statutory default ratio where an offender faces a lengthy aggregate sentence across multiple matters and rehabilitation in the community requires an extended parole period.
  • Under the aggregate sentencing framework, indicative sentences imposed on revoked bond matters are taken into account in the overall sentence calculation but do not carry separate commencement or expiry dates.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1) (robbery armed with an offensive weapon)
- Road Transport Act 2013 (NSW), s 54(1)(a) (drive during disqualification period)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 12 (suspended sentences and bonds)

Cases:
- Bugmy v The Queen (2013) 249 CLR 571
- R v Fernando (2013) 249 CLR 571
- R v Henry (1999) 46 NSWLR 346
- Gardiner v The Queen [2018] NSWCCA 27
- R v Matthews [2007] NSWCCA 294