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District Court 9 December 2021

R v Rufeal Meskele

[2021] NSWDC 704

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW JOINT CRIMINAL ENTERPRISE BREAK AND ENTER USE OF DANGEROUS WEAPONS SENTENCE FACT FINDING OFFENDING FOUND TO BE WITHIN THE MID

Citation: R v Rufeal Meskele [2021] NSWDC 704
Court: District Court of New South Wales
Date: 9 December 2021
Judge: Hatzistergos DCJ

Background

Following a six-day jury trial, the offender was convicted on three counts arising from a violent home invasion at Blacktown on 30 June 2019. The offender and several co-offenders had agreed, via a Facebook group chat, to travel to and rob a drug dealer. After arriving at the address, they realised they had entered the wrong house.

Inside the home were an 84-year-old woman and several family members who had gathered for a visit. Rather than withdrawing, the group corralled the occupants at gunpoint with a baseball bat, a large kitchen knife, and scissors, demanding to know the whereabouts of a person named "Shay" and cannabis. When their demands were not met, they robbed the occupants of phones, a wallet, cash, and a watch, threatening to return and kill the victims if police were called.

The offender was convicted of aggravated break and enter and robbery in company (Count 1, carrying a maximum of 20 years imprisonment), and two counts of robbery in company (Counts 2 and 3, each carrying a maximum of 20 years). He was sentenced in December 2021.

  • What facts could be established beyond reasonable doubt for sentencing purposes, particularly the offender's specific role within the joint criminal enterprise
  • Whether the objective seriousness of the offending warranted placement within a particular range
  • Which aggravating and mitigating factors applied under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether remorse had been established
  • How the sentence should reflect parity with co-offenders sentenced for the same enterprise
  • Whether the conditions of imprisonment during the COVID-19 pandemic warranted any adjustment
  • How the aggregate sentence should be structured, including non-parole period

Decision

Fact-finding and role in the enterprise. His Honour conducted careful fact-finding before sentencing, as required where a jury verdict does not specify findings on disputed facts. The court was satisfied that the offender was an active participant in the joint criminal enterprise from the outset, having confirmed his readiness in the Facebook chat and having entered the house. However, the court sentenced him on the basis of a lesser role than the co-offenders who wielded the baseball bat and knife. The court found it could not be satisfied beyond reasonable doubt that the offender personally carried a weapon or was the person who committed each specific robbery act.

Objective seriousness. The offending was assessed as falling within the mid-range of objective seriousness. The court identified several aggravating features under s 21A: the offending was committed in company, involved the threatened use of violence with dangerous weapons, and occurred in the victims' home. The presence of an elderly and vulnerable occupant and the lasting psychological harm described in the victim impact statements were also noted.

Subjective circumstances. The offender had no significant prior criminal history and was assessed as presenting a medium risk of re-offending with reasonable prospects of rehabilitation. Remorse was not established to the court's satisfaction. His Honour took into account the offender's relative youth and the particular weight the community places on rehabilitation for young offenders. The impact of COVID-19 on conditions of imprisonment was also acknowledged as a relevant consideration.

Parity. His Honour considered the sentences imposed on the other co-offenders and structured the aggregate sentence so as to maintain appropriate parity, accounting for the offender's lesser role. An aggregate sentence of five years imprisonment was imposed, with a non-parole period of two years and six months. Following discussion after sentence was delivered, the offender was also referred to the Drug Court for consideration of eligibility for placement in the Compulsory Drug Treatment Centre.

Orders Made

  • Count 1 (aggravated break and enter and robbery in company): indicative sentence of 3 years and 8 months imprisonment, with a non-parole period of 1 year and 10 months
  • Count 2 (robbery in company): indicative sentence of 2 years and 6 months imprisonment
  • Count 3 (robbery in company): indicative sentence of 2 years and 6 months imprisonment
  • Aggregate sentence of 5 years imprisonment imposed
  • Non-parole period of 2 years and 6 months commencing 27 April 2021 and expiring 26 October 2023
  • Additional term of 2 years and 6 months from 27 October 2023 to 26 April 2026, during which the offender is eligible for release to parole
  • Earliest possible release date: 26 October 2023
  • Breaches of three conditional release orders established; no action taken on those breaches
  • Offender referred to Drug Court for consideration of eligibility for the Compulsory Drug Treatment Centre

Key Takeaways

  • Where a jury verdict does not resolve factual disputes relevant to an offender's specific role in a joint criminal enterprise, the sentencing court must conduct its own fact-finding and sentence on the basis only of facts established beyond reasonable doubt.

  • A home invasion in company, involving the threatened use of dangerous weapons against multiple victims including a vulnerable elderly person, placed in the mid-range of objective seriousness, will attract an aggregate sentence in the range of five years even for a participant with a lesser role.

  • The District Court confirmed that the conditions of imprisonment during the COVID-19 pandemic are a legitimate factor to take into account when assessing the overall burden of a custodial sentence.

  • Parity remains a live consideration even where co-offenders are sentenced at different times; the sentencing court must account for the relative culpability of each participant to avoid unjustifiable disparity.

  • Rehabilitation carries particular weight when sentencing young offenders, and the court balanced the community's interest in deterrence against its interest in the offender's eventual return as a contributing citizen.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) ss 97, 112, 113
- Crimes (Administration of Sentences) Act 1999 (NSW) s 276
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 5, 21A, 30E

Cases
- Corda v R [2014] NSWCCA 281
- Dougan v R (2006) A Crim R 135
- Hamze v R [2006] NSWCCA 36
- Huynh v R [2006] NSWCCA 224
- Makrynikos v R [2006] NSWCCA 170
- Marshall v R [2007] NSWCCA 24
- R v Duffy (2014) 297 FLR 359
- R v Wong [2003] NSWCCA 247
- Shortland v R [2013] NSWCCA 4
- Toller v R [2021] NSWCCA 204