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District Court 2 July 2021

R v Naquita Heaki

[2021] NSWDC 296

Assault & violence
PARITY IN SENTENCING.

Citation: R v Naquita Heaki [2021] NSWDC 296
Court: District Court of New South Wales
Date: 2 July 2021
Judge: Mahony SC DCJ

Background

The offender and her husband returned home in the early hours of 26 April 2020 after a night out, in an agitated and manic state, believing that a female friend had been harmed or killed. Shortly before 10am, a female pedestrian walked past the front of their Hurstville home. The offender and her husband mistakenly identified this woman as the person responsible for harming their friend.

The husband ran out and subjected the victim to a prolonged and severe attack on the footpath. During the attack, the offender actively encouraged her husband, including shouting "Kill her! Do it!" and retrieving a large kitchen knife and hammer from the home, which she handed to him. The attack ended only when police arrived at approximately 10.02am.

The offender was charged with one count of reckless grievous bodily harm in company under s 35(1) of the Crimes Act 1900, and one related count of destroying or damaging property to the value of less than $2,000. The husband had been separately sentenced, and the question of parity between the two sentences was a central consideration.

  • What was the appropriate sentence for the offender, having regard to the objective seriousness of the offending and her personal circumstances?
  • How should parity principles apply given the co-offender (the husband) had already been sentenced?
  • Whether the sentence should be served in full-time custody or by way of an Intensive Correction Order (ICO), given the offender's time already spent on remand and her personal circumstances.
  • How to apply the standard non-parole period of five years, relevant to an offence carrying a maximum of 14 years imprisonment.

Decision

The court characterised the offending as serious. The victim was a complete stranger who was attacked in broad daylight in a prolonged and brutal assault. The offender's role, while secondary to that of her husband who inflicted the physical violence, was nonetheless significant: she encouraged the attack verbally and retrieved weapons from the home during the assault. The court found her conduct went well beyond mere presence.

On the question of parity, the court was required to consider the sentence already imposed on the co-offender husband and ensure the offender's sentence did not produce a justifiable sense of grievance when compared. The court noted the offender's role was less direct than her husband's, which warranted a meaningful distinction in the sentences imposed.

The court took into account a number of mitigating factors personal to the offender, including her background, her role as primary carer for three young children, relevant psychological and other expert material before the court, and her time already spent in pre-sentence custody of 144 days. The court found that the balance of considerations favoured a community-based sentence rather than full-time imprisonment.

Having regard to the 144 days of pre-sentence custody already served, the court deducted that period from the aggregate term of imprisonment and imposed the balance by way of an ICO for two years and four months, consistent with the approach confirmed in Mandranis v R [2021] NSWCCA 97.

Orders Made

  • The offender was convicted of reckless grievous bodily harm in company under s 35(1) of the Crimes Act 1900.
  • The offender was convicted of destroy or damage property under s 195(1) of the Crimes Act 1900.
  • An aggregate sentence of two years and four months was imposed under s 53A of the Crimes Act 1900.
  • The sentence was ordered to be served by way of an Intensive Correction Order (ICO) commencing 2 July 2021, pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999.
  • Standard ICO conditions applied: no further offending; submission to supervision by a community corrections officer.
  • An additional condition required participation in rehabilitation or treatment programs as recommended.
  • The offender was directed to report to the Fairfield community corrections office within seven days.
  • The court noted that breach of the ICO conditions could result in sanctions including revocation and full-time custody.

Key Takeaways

  • The District Court confirmed that a secondary participant in a serious assault, who actively encourages the principal offender and retrieves weapons during the attack, bears significant criminal culpability even without personally inflicting the physical violence.
  • Parity in sentencing requires the court to assess each co-offender's relative role and moral culpability individually, and to ensure that any disparity between sentences reflects genuine differences in those roles rather than producing an unjustifiable sense of grievance.
  • Where an offender has served pre-sentence custody, that period may be deducted from the total term of imprisonment before converting the balance to an ICO, consistent with the approach endorsed by the Court of Criminal Appeal in Mandranis v R [2021] NSWCCA 97.
  • An ICO remained available even for a serious offence carrying a five-year standard non-parole period, where personal circumstances and other sentencing factors collectively supported a community-based disposition.
  • Sufficient expert and assessment material before the court can satisfy the s 17D(1A) requirements of the Crimes (Sentencing Procedure) Act 1999, permitting an ICO to be imposed without obtaining a further sentencing assessment report.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 35(1), 195(1), 53A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 7(1), 17D(1A)
- Criminal Procedure Act 1986 (NSW), s 166

Cases
- Mandranis v R [2021] NSWCCA 97
- Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Muldrock v The Queen (2011) 224 CLR 120; [2011] HCA 39
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1
- Brown v R [2020] NSWCCA 132
- Waterfall v R [2019] NSWCCA 28
- R v Tuhakaraina [2016] NSWCCA 81
- R v Chandler; Chandler v R [2012] NSWCCA 135
- R v Rhodes [2017] NSWSC 694
- McCullough v R [2009] NSWCCA 94
- Waters v R [2007] NSWCCA 209
- R v Edwards (1996) 90 A Crim R 510