Citation: R v Nikua, Nikua, Orika, Sio, Torotoro, and Tuahuru [2020] NSWDC 902
Court: District Court of New South Wales
Date: 8 December 2020
Judge(s): Bourke SC DCJ
Background
Six offenders appeared for sentencing in the NSW District Court following a violent group assault at Marayong Railway Station on 6 February 2019. The victim, a 28-year-old man out riding his bicycle, encountered the group drinking near a railway underpass. A brief conversation escalated without apparent reason into a sustained and brutal attack involving punching, kicking, stomping, and the use of broken glass as a weapon. The victim sustained lacerations requiring stitches, severe facial bruising, and injuries across his torso and back.
Two of the six offenders, referred to here as the Nikua brothers, faced additional sentencing for a separate affray on 10 July 2019. That incident arose from gang rivalry between the Inner West Brotherhood Gang and the Greater West Brotherhood Gang, culminating in a large brawl at a Mount Druitt hotel involving weapons including knives, pool cues, and a metal pole. One of the brothers was hospitalised with multiple stab wounds following that brawl.
All six offenders pleaded guilty to reckless wounding in company and affray arising from the February incident. The two brothers also pleaded guilty to the July affray, and each had a further offence of participating in a criminal group taken into account on a Form 1.
Legal Issues
- What sentences were appropriate for six co-offenders who each pleaded guilty to reckless wounding in company and affray, taking into account individual circumstances and the principle of totality?
- Whether two of the offenders (Torotoro and Tuahuru) should serve their aggregate sentences by full-time custody or by Intensive Correction Order (ICO) in the community, having regard to community safety under section 66 of the Crimes (Sentencing Procedure) Act 1999.
- What weight should be given to a 25% guilty plea discount, the standard non-parole period for reckless wounding in company, and individual mitigating factors across six different offenders?
Decision
His Honour sentenced each offender individually, accounting for their distinct roles, criminal histories, personal circumstances, and the utilitarian value of their early guilty pleas. All six received a 25% discount on their sentences, which the Crown accepted was appropriate given pleas entered at the earliest opportunity.
The offences were treated as serious. The February assault was a prolonged, group attack on a lone, unarmed victim, during which a broken bottle was used to wound him. The July gang brawl involved armed members of rival groups and resulted in serious injuries. His Honour was mindful of the principle of totality throughout, structuring sentences to avoid outcomes that could be described as crushing.
For the reckless wounding in company offence, the standard non-parole period of four years served as a legislative benchmark. Aggregate sentences were imposed across the offenders, with the indicative terms for the Marayong affray and wounding offences informing the overall terms imposed.
In relation to Torotoro and Tuahuru, His Honour determined that community safety would be best served by ordering that their aggregate sentences of two years and eleven months each be served in the community by way of Intensive Correction Order, rather than by full-time custody. Additional conditions were imposed on both, including alcohol counselling, anger management, community service, and a prohibition on associating with co-offenders.
Orders Made
- Torotoro and Tuahuru each sentenced to an aggregate term of two years and eleven months, to be served in the community by Intensive Correction Order under section 7 of the Crimes (Sentencing Procedure) Act 1999.
- Standard ICO conditions imposed: no offences to be committed; submission to supervision by a Community Corrections Officer.
- Additional conditions for both Torotoro and Tuahuru:
- Participate in alcohol abuse counselling or treatment as directed by Community Corrections.
- Participate in anger management or other counselling as directed by Community Corrections.
- Not associate with any of the five co-offenders sentenced on the same day.
- Complete 300 hours of community service each.
- Torotoro directed to report by telephone to Fairfield Community Corrections Office within seven days.
- Tuahuru directed to report by telephone to Mount Druitt Community Corrections Office within seven days.
(Note: The full sentencing orders for the remaining four offenders were not reproduced in the available text.)
Key Takeaways
- A 25% guilty plea discount applied uniformly where all six offenders entered pleas at the earliest opportunity, consistent with the utilitarian value recognised under the Crimes (Sentencing Procedure) Act 1999.
- Under section 66 of the Crimes (Sentencing Procedure) Act 1999, community safety is paramount when a court considers whether to impose an ICO rather than full-time custody, but the District Court found that, in the circumstances of two offenders, community safety was best served by supervised rehabilitation in the community rather than imprisonment.
- Aggregate sentencing was used across multiple co-offenders to reflect the totality principle, ensuring that the combined effect of sentences for related offences did not become disproportionately punitive.
- Where co-offenders are sentenced for a common criminal episode, individual roles, backgrounds, and personal circumstances remain relevant and can produce meaningfully different outcomes even when the underlying charges are identical.
- Form 1 offences (here, participating in a criminal group) are taken into account in fixing the sentence for the principal offence but do not result in separate penalties, a procedure that affected the overall sentencing exercise for the Nikua brothers.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW): offences of reckless wounding in company (maximum 10 years, standard non-parole period 4 years) and affray (maximum 10 years)
- Crimes (Sentencing Procedure) Act 1999 (NSW): s 3A (purposes of sentencing), s 7 (Intensive Correction Orders), s 66 (community safety and ICOs)
Cases
- Aouli v The Queen [2012] NSWCCA 104
- BP v The Queen [2010] NSWCCA 159
- Bugmy v The Queen (2013) 249 CLR 571