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District Court 29 October 2021

R v Malupo

[2021] NSWDC 586

Assault & violenceTheft & propertyPublic order & justice offences
CRIME SENTENCE AGGRAVATED ASSAULT WITH INTENT TO ROB RECKLESSLY INFLICT ABH IN COMPANY RESIST ARREST.

Citation: R v Malupo [2021] NSWDC 586
Court: District Court of New South Wales
Date: 29 October 2021
Judge(s): Mahony SC DCJ

Background

The offender, a 23-year-old man, pleaded guilty to aggravated assault with intent to rob and recklessly inflicting actual bodily harm in company, contrary to section 95(1) of the Crimes Act 1900. The maximum penalty for that offence is 20 years imprisonment. A related resist arrest matter was placed on a Form 1 (meaning it was taken into account at sentencing without a separate conviction being recorded).

The offence occurred in the early hours of 7 November 2020 at Lakemba train station. The offender and his brother-in-law, acting together, approached a lone victim on a train platform and demanded money. When the victim said he had none, the co-offender struck him on the head with a steel claw hammer, causing a laceration that required hospital treatment. The offender and co-offender then chased the victim along the street before fleeing in a car.

The offender was arrested three days later. He resisted arrest at a café, where five police officers were ultimately needed to restrain him. He had also been called up for sentence on four prior community correction order matters arising from earlier offending in 2019.

  • What was the appropriate head sentence and non-parole period for the section 95(1) offence, applying the principle of totality across all matters?
  • How should the court weigh the offender's guilty plea, expressed remorse, and personal background (including mental health difficulties, drug use, and exposure to domestic violence) against the objective seriousness of the offence?
  • What sentences were appropriate for the four prior breach of bond matters, to be served concurrently with the index offence?

Decision

His Honour assessed the index offence as serious. The attack was planned to a degree: the co-offender brought a steel hammer, wore disposable gloves, and the offender covered his face with a mask before they targeted a lone victim at a train platform in the early hours of the morning. The victim suffered a significant head wound and fled in fear for his life.

In mitigation, the court accepted the offender's guilty plea, his expressed remorse, and his personal circumstances. These included exposure to domestic violence as a child, a breakdown of his marriage, and the self-medication of depression and anxiety through cannabis and unprescribed Xanax at the time of the offence. The offender had otherwise demonstrated industry, having established his own landscaping business. His criminal antecedents were assessed as limited.

On the breach of bond matters, the court imposed an aggregate fixed term of six months imprisonment, backdated to commence 10 November 2020 (the date of arrest). His Honour then applied the totality principle across all of the offending to arrive at the sentence for the index offence.

Orders Made

  • Breach of bond matters: Aggregate sentence of 6 months imprisonment, commencing 10 November 2020, expiring 9 May 2021.
  • Index offence (s 95(1) Crimes Act 1900): Convicted of aggravated assault with intent to rob and recklessly inflict actual bodily harm.
  • Non-parole period of 2 years imprisonment, commencing 10 February 2021, terminating 9 February 2023.
  • Balance of term of 1 year and 6 months, commencing 10 February 2023, expiring 9 August 2024.
  • Parole eligibility date: 9 February 2023.
  • The Form 1 resist arrest matter was formally taken into account.

Key Takeaways

  • The District Court treated the combination of acting in company, using a weapon, and targeting a lone victim late at night as factors that elevated the objective seriousness of the section 95(1) offence considerably.
  • Personal hardship, including a history of exposure to domestic violence and mental health difficulties arising from a marriage breakdown, was accepted in mitigation, though such matters do not diminish objective seriousness.
  • Drug intoxication at the time of an offence does not excuse conduct but may bear on the offender's state of mind and culpability where the connection to the offending is established.
  • Where an offender faces multiple sentencing proceedings simultaneously, the totality principle requires the court to step back and ensure the combined sentences are just and appropriate when viewed as a whole, rather than merely adding individual terms together.
  • Placing a matter on a Form 1 allows a sentencing court to take additional offending into account without recording a further conviction, reflecting the court's power to consider the full picture of an offender's conduct.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 58, 95(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Road Transport Act 2013 (NSW), s 112(1)(a)
- Summary Offences Act 1988 (NSW), s 11C(1)

Cases
- Azzi v R [2008] NSWCCA 169
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- DPP (Cth) v Saadieh [2021] NSWSC 1186
- Georgopolous v R [2010] NSWCCA 246
- Moore v R [2005] NSWCCA 407
- R v Henry & Ors (1996) 46 NSWLR 346
- The Queen v De Simoni (1981) 147 CLR 383