Citation: R v Tupou [2021] NSWDC 649
Court: District Court of New South Wales
Date: 26 November 2021
Judge: Abadee DCJ
Background
The appellant pleaded guilty in Penrith Local Court to robbery under s 94(a) of the Crimes Act 1900 (NSW), arising from an incident at a Blacktown brothel in the early hours of 4 March 2021. He entered the premises, used various pretexts to lull the proprietor, then demanded money and took her wallet containing $18,000 cash. He pushed the proprietor to the ground on several occasions as she pursued him, and punched through the window of a bystander's car in which she had taken refuge.
The Local Court sentenced the appellant to 18 months imprisonment with a 12-month non-parole period. Most of the stolen property, including $16,775 of the cash, was recovered when police searched his home.
The appellant brought a severity appeal to the District Court, seeking a reduction in sentence or substitution of an Intensive Corrective Order (ICO) in place of full-time custody.
Legal Issues
- Whether the brothel proprietor should be treated as a "vulnerable" victim, as an aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW)
- Whether the De Simoni principle required care in characterising the degree of violence used, so as not to implicitly sentence for a more serious offence
- Whether the appellant's intoxication and gambling and drug addiction reduced his culpability
- Whether principles from Bugmy v The Queen applied given the appellant's claimed history of childhood abuse
- Whether the sentence imposed by the Magistrate contained error, including an error arising from Park v The Queen concerning the application of the Local Court's jurisdictional limit
- Whether an ICO was appropriate in substitution for the term of imprisonment
Decision
Vulnerability of the victim. The District Court accepted that the proprietor of a brothel could, in appropriate circumstances, be treated as a vulnerable person. Running a cash-intensive business that operates late at night, in a context where the proprietor may be reluctant to seek police assistance, was found to heighten exposure to the type of predatory conduct that occurred here. The Court was careful not to infringe the De Simoni principle by treating the level of violence as elevating the offending to a more serious category.
Culpability and personal circumstances. The Court rejected the submission that intoxication or gambling addiction materially reduced the appellant's culpability. It also declined to apply Bugmy principles, finding no sufficient connection between the appellant's claimed childhood exposure to violence and his descent into gambling and drug use in 2019, by which time he had established stable employment and a supportive family life. The Court accepted that the offending involved a degree of planning: the appellant had identified the premises, adopted a disarming demeanour, and appeared to have identified an exit point before acting.
The Magistrate's sentence and jurisdictional limit. The Court noted that the High Court's subsequent decision in Park v The Queen confirmed it would have been an error for the Magistrate to work backwards from the Local Court's jurisdictional limit when applying the guilty plea discount. Despite this observation, the Court declined to increase the head sentence of 18 months, characterising it as lenient but acceptable.
Intensive Corrective Order. The Court declined to substitute an ICO. It applied the established two-step framework: first, fixing the term of imprisonment, and only then assessing the s 66 criteria, noting that it is impermissible to fix a term of imprisonment with the desired outcome of making an ICO in mind. While acknowledging the appellant's genuine steps toward rehabilitation, the Court found that his recent criminal history and the gravity of the offending meant community safety considerations weighed against an ICO. The Court did, however, find special circumstances justifying a substantial reduction in the non-parole period, reducing it from 12 months to 9 months.
Orders Made
- The sentence of 18 months imprisonment was confirmed, backdated to commence 26 October 2021 and expiring 25 April 2023.
- The non-parole period was reduced from 12 months to 9 months, expiring 25 July 2022.
- A finding of special circumstances was made to facilitate rehabilitation.
- The severity appeal was otherwise dismissed.
Key Takeaways
- A brothel proprietor may be treated as a "vulnerable" victim for sentencing purposes where the nature of the business creates particular exposure to predatory offending, though each case will turn on its own facts.
- Intoxication and gambling addiction did not, in this case, materially reduce the offender's culpability, and the Court declined to extend Bugmy principles where no adequate causal link was established between childhood trauma and the conduct in question.
- Under Park v The Queen, a Local Court sentencing magistrate must determine the appropriate sentence first and only then apply the jurisdictional limit, not work backwards from that limit as a starting point.
- An ICO cannot be engineered by fixing a term of imprisonment to achieve the desired outcome; the term must be set independently, and the s 66 criteria assessed separately, as confirmed in Mandranis v R.
- Finding special circumstances within the meaning of the Crimes (Sentencing Procedure) Act 1999 allows a court to reduce the non-parole period below the standard ratio, here to facilitate genuine prospects of rehabilitation.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 94
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 66, 68
Cases:
- Bugmy v The Queen (2013) 249 CLR 571
- Longworth v The Queen [2017] NSWCCA 119; (2017) 266 A Crim R 551
- Mandranis v R [2021] NSWCCA 97
- Park v The Queen [2021] HCA 37; (2021) 95 ALJR 968
- R v Edwards (1996) 90 A Crim R 510
- R v Murray (unrep, 11/9/86, NSWCCA)
- R v Valentini (1989) 46 A Crim R 23
- The Queen v De Simoni (1981) 147 CLR 383
- Veen v The Queen (No 2) (1988) 164 CLR 465