Citation: R v Finau [2019] NSWDC 935
Court: District Court of New South Wales
Date: 2 August 2019
Judge: Norrish QC DCJ
Background
The offender, a young man in his early twenties with no relevant criminal history, appeared for sentencing on two principal offences. The first was robbery in company with wounding, committed in November 2017 at a newsagency in Pagewood. The offender participated in the robbery alongside an unidentified co-offender who carried what appeared to be a functioning pistol. The newsagent victim was punched repeatedly, thrown to the floor, and required three stitches to his head. The offender was identified through DNA recovered from a stool he threw at the victim during the robbery.
The second offence was supply of a prohibited drug, arising from the offender's arrest in January 2018. When police executed a search warrant at his partner's Glebe residence, they found 68.76 grams of methylamphetamine and 24.8 grams of Xanax. The offender was also subject to a good behaviour bond at the time of both offences, which operated as an aggravating factor.
Both offences were the subject of guilty pleas. A further supply offence involving the Xanax was taken into account on a Form 1 (a procedural mechanism under which an offender asks the court to take additional charges into account when passing sentence, without those charges being separately prosecuted).
Legal Issues
- What aggregate sentence appropriately reflects the totality of the offender's criminality across both principal offences and the Form 1 matter?
- What discount should apply for the guilty pleas?
- Whether the offences being committed while subject to a good behaviour bond constituted an aggravating factor under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999.
- Whether special circumstances existed warranting a variation of the standard ratio between the non-parole period and the balance of sentence.
- What weight should be given to the offender's youth, expressions of remorse, limited prospects of rehabilitation, and family support?
Decision
The District Court imposed an aggregate sentence of six and a half years' imprisonment, with a non-parole period of three years and six months commencing on 31 January 2018. The Court applied the totality principle when arriving at the aggregate figure, meaning it assessed the overall criminality rather than simply adding individual sentences together.
A 25% discount was applied to the robbery charge, reflecting the guilty plea entered at the first reasonable opportunity in the Local Court. The Court accepted that the offender's moral culpability for the robbery was reduced because he was not the person wielding the firearm or physically striking the victim. However, the Court found that his participation, including entering the newsagency within seconds of the armed co-offender and throwing the stool at the victim, demonstrated clear complicity and apparent endorsement of the violence.
The offender's expressions of remorse were given limited weight. The Court was not persuaded by claims of memory loss regarding the robbery, observing that such a distinctive event could not plausibly have been forgotten. The offender's refusal to identify his co-offender also weighed against him, leaving that person free in the community.
The Court acknowledged the offender's youth, absence of relevant prior criminal history, family support, and some prospects of rehabilitation as mitigating factors. These were balanced against the seriousness of the offending, particularly the use of what appeared to be a real firearm, actual violence causing injury, and the commission of all offences while subject to a bond.
Orders Made
- Aggregate term of imprisonment of six years and six months, comprising:
- Non-parole period of three years and six months, commencing 31 January 2018 and expiring 30 October 2021
- Balance of sentence of three years, expiring 30 July 2024
- Indicative sentence for robbery in company with wounding: five years and three months, with a non-parole period of three years
- Indicative sentence for supply of prohibited drug (including Form 1 matter): two years' imprisonment
- Call-up matters (relating to the breach of the good behaviour bond): nine months' imprisonment in each case
Key Takeaways
- The District Court applied the totality principle under s 53A of the Crimes (Sentencing Procedure) Act 1999 to impose an aggregate sentence, setting indicative sentences for each count rather than simply cumulating them.
- Committing offences while subject to a good behaviour bond constituted a statutory aggravating factor under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999, applied here to both principal offences.
- A 25% guilty plea discount was available where the plea was entered at the first reasonable opportunity, consistent with the approach in R v Henry and related authorities.
- Expressions of remorse carried limited weight where the offender maintained an implausible account of memory loss and declined to assist police in identifying a co-offender.
- Youth, absence of prior criminal history, and family support were recognised as mitigating factors, though they did not substantially reduce the sentence given the gravity of the violence involved and the drug quantities found.
Legislation and Cases Referenced
Legislation
- Crimes Act (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9(1), 21A(2), 53A
- Drugs (Misuse and Trafficking) Act 1985 (NSW), s 25(1)
Cases
- Attorney-General's Application No 1 (2002) 56 NSWLR 147
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Johnson v R [2004] HCA 15; 78 ALJR 616
- Mill v R (1988) 166 CLR 59
- Parente v R [2017] NSWCCA 284
- Pearce v R (1998) 194 CLR 610
- R v Henry (1999) 46 NSWLR 346
- R v Holder (1983) 3 NSWLR 245
- R v XX (2009) 195 A Crim R 38