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District Court 12 August 2020

R v Waqabaca

[2020] NSWDC 448

Assault & violenceTheft & propertyPublic order & justice offences
CRIME

Citation: R v Waqabaca [2020] NSWDC 448
Court: District Court of New South Wales
Date: 12 August 2020
Judge(s): M Adams QC ADCJ

Background

The offender was a resident of a boarding house in Campsie who became increasingly frustrated with the behaviour of another tenant living in a separate granny flat in the rear yard. Tensions escalated over the evening of 24 September 2019 and into the following afternoon, culminating in a series of violent acts on 25 September 2019.

The offender armed himself with a wooden baseball bat and confronted the victim while the victim was locked in a communal toilet, repeatedly threatening to kill him and striking the door. The victim managed to escape through a window and flee the premises. The offender then broke into the victim's granny flat and deliberately set fire to a cushion on the lounge, intending to burn the room as, in his own words, a means of "taking the law into his own hands."

The offender was charged with two offences: being armed with a weapon with intent to commit assault, and break, enter and commit a serious indictable offence (arson of the tenant's property). A further offence of stalking and intimidating the victim was taken into account on a Form 1 (that is, an additional offence acknowledged for sentencing purposes without a separate conviction being recorded).

  • Whether the offender's prior convictions for indictable offences could increase the maximum penalty under s 115 of the Crimes Act 1900 from 7 to 10 years for the first charge
  • What aggregate sentence was appropriate, having regard to the objective seriousness of the offences, the offender's subjective circumstances, and the 25% guilty plea discount
  • Whether special circumstances existed to justify departing from the standard statutory non-parole period formula under s 44 of the Crimes (Sentencing Procedure) Act 1999
  • How to structure partial accumulation of sentences across two related but distinct offences arising from the same overall incident

Decision

On the maximum penalty for the first charge: Although the offender had prior indictable convictions from 2007 and 2015, the charge as drafted omitted the element of a prior conviction. Consistent with established authority, a prior conviction must be specifically averred in the charge to enliven the higher maximum of 10 years under s 115. Because it was not, the offender was sentenced on the basis of the standard 7-year maximum for the first charge.

On objective seriousness: The court assessed both offences as sitting at the lower end of the objective seriousness spectrum. However, the judge noted that, while the two offences formed part of a single overall attack, they differed in time, place, and character, and their respective degrees of culpability had a cumulative effect on the total sentencing outcome.

On subjective circumstances: The offender was 61 at the time of the offences, of Islander heritage, and had provided a psychological assessment report. The court accepted the report's contents but found the subjective features provided no basis for leniency. The offender held a belief that he was morally justified in his conduct, framing himself as a "peacekeeper" acting for other residents, and the sentence needed to address both personal deterrence and the condemnatory function of the criminal law.

On accumulation and special circumstances: The court imposed partially accumulated sentences, adding three months to produce an aggregate head sentence of 16 months. No special circumstances were found to justify varying the statutory formula for the non-parole period, which was fixed at 12 months.

Orders Made

  • First charge (armed with intent to assault): indicative sentence of 18 months imprisonment, reduced to 13 months after the 25% guilty plea discount, with the Form 1 stalking offence taken into account
  • Second charge (break, enter and arson): indicative sentence of 18 months imprisonment, reduced to 13 months after discount, accumulated by 3 months on the first sentence
  • Aggregate head sentence: 16 months imprisonment
  • Non-parole period: 12 months
  • Sentence to commence: 25 September 2019
  • Release on parole directed at expiration of non-parole period: 24 September 2020

Key Takeaways

  • Under s 115 of the Crimes Act 1900, a prior indictable conviction will only attract the elevated 10-year maximum penalty if that prior conviction is specifically averred in the charge. Omitting it means the court is limited to the base maximum, regardless of the offender's actual history.
  • A 25% sentencing discount for a guilty plea entered at the earliest opportunity applied without dispute, consistent with s 25D of the Crimes (Sentencing Procedure) Act 1999.
  • Where two offences arise from the same overall incident but differ in time, place, and character, some accumulation of sentences remains appropriate to reflect their distinct culpability, provided the overall result does not exceed what is proportionate to the total criminality.
  • Subjective features, including psychological evidence and an offender's personal background, will not necessarily support leniency where the offender demonstrates a sustained belief in the moral justification of violent conduct.
  • No special circumstances were found sufficient to displace the statutory non-parole period formula, resulting in a non-parole period representing three-quarters of the aggregate head sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 112(1)(a), 114(1)(a), 115
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25D, 33, 44

Cases:
- R v Smith and Bardini (NSWCCA, 11 September 1987, unreported)
- R v Tillott (1991) 53 A Crim R 46