Citation: R v Naqelevuki [2021] NSWDC 748
Court: District Court of New South Wales
Date: 19 November 2021
Judge: Haesler SC DCJ
Background
The offender pleaded guilty in the Local Court to two serious offences committed in 2020 and 2021: robbery armed with an offensive weapon (s 95(1) Crimes Act 1900) and aggravated robbery with deprivation of liberty (s 97(1) Crimes Act 1900). Two additional matters relating to obtaining a benefit by deception were taken into account on a Form 1.
The first offence involved a planned armed robbery of a service station at Balgownie in July 2020. The offender wore a disguise and carried a claw hammer, causing significant distress to the lone attendant and bystanders, including a child. Little property was taken after the register failed to open.
The second offence, in January 2021, was apparently spontaneous. The offender confronted a 67-year-old man walking on a beach at night, punched him, threatened to kill him, and compelled him under fear of further violence to travel to his home unit and then to a nearby 7-Eleven, where the victim's Visa card was used to purchase goods. The victim suffered physical injuries and was detained for a period described by the court as likely feeling like an eternity.
Legal Issues
- What aggregate sentence was appropriate for two serious robbery offences, each carrying a maximum of 20 years' imprisonment?
- How should the 25% discount for early guilty pleas be preserved through the process of accumulating sentences?
- What weight should be given to subjective factors, including youth, immaturity, a background of trauma, Alcohol Use Disorder, and Oppositional Defiance Disorder?
- Whether special circumstances existed to justify a non-parole period departing from the statutory norm.
- How should Form 1 matters affect the overall sentence without resulting in double counting?
Decision
His Honour found both offences to be serious crimes against people, not merely property. The first offence involved limited planning but a frightening weapon and real distress caused to the victim and bystanders. The second was spontaneous but more serious in some respects, involving actual violence, sustained psychological coercion, deprivation of liberty, and the complete overcoming of the victim's will.
The court considered the offender's significant subjective circumstances, including his youth and immaturity, a background of trauma, diagnosed Alcohol Use Disorder, and Oppositional Defiance Disorder. These factors reduced his moral culpability to some extent, though His Honour noted that the offender's prospects of rehabilitation were guarded and expressed limited confidence that he would take up opportunities available to him on parole.
Special circumstances were found to exist, justifying an extension of the parole period beyond the statutory ratio. This finding reflected the offender's background and the accumulation of sentences, which together meant a longer period of supervised release in the community was warranted. The court was careful to ensure that the 25% guilty plea discount was not eroded by the mechanics of sentence accumulation.
The Form 1 matters operated to increase the sentences for the principal offences so far as personal deterrence and retribution were concerned, consistent with the approach in Attorney General's Application No. 1 and Markarian. His Honour was cautious to avoid double counting, given that the Form 1 matters also bore on the objective seriousness of the offences for sentence.
Orders Made
- Convicted on the s 97(1) matter (aggravated robbery, depriving person of liberty): indicated sentence of 3 years 4 months (taking into account Form 1 matters).
- Convicted on the s 95(1) matter (robbery armed with offensive weapon): indicated sentence of 4 years.
- Aggregate sentence of 5 years and 6 months, commencing 18 July 2021.
- Non-parole period of 3 years and 6 months, commencing 18 July 2021, expiring 17 January 2025 (eligible for parole consideration from that date).
- Parole period of 2 years; total sentence expiring 17 January 2027.
- Taking into account the breach, Local Court matters, and the two matters for sentence, the total effective sentence is 6 years' imprisonment with a minimum term in custody of 4 years.
- A psychological report was directed to accompany the warrant to the gaol for the assistance of the State Parole Authority.
Key Takeaways
- The District Court confirmed that the absence of Victim Impact Statements does not give rise to an inference that the offences had little or no impact on victims, consistent with s 30E of the Crimes (Sentencing Procedure) Act 1999.
- Under the approach in Markarian and Attorney General's Application No. 1, Form 1 matters increase the sentence for the principal offence for purposes of personal deterrence and retribution, but care must be taken not to double count where those matters also inform the assessment of objective seriousness.
- Where an aggregate sentence involves partial accumulation, the sentencing court must actively preserve the utilitarian value of an early guilty plea and ensure it is not eroded by the accumulation process.
- Special circumstances were established on the basis of the offender's traumatic background and the effect of accumulating sentences, justifying a longer parole period to allow for extended supervision on release.
- Guideline judgments, including R v Henry, remain important guides to sentencing discretion in robbery matters, though they function as guidelines rather than rigid prescriptions, as confirmed in Moodie v R.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 95(1), 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 30E, 42A
Cases
- Attorney General's Application No. 1 (2002) 56 NSWLR 146
- Clarke-Jeffries v R [2019] NSWCCA 56
- DPP v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
- Markarian v The Queen (2005) 228 CLR 357
- Moodie v R [2020] NSWCCA 160
- R v Engert (1995) 84 A Crim R 67
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346