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District Court 17 September 2021

R v Akauola

[2021] NSWDC 767

Assault & violencePublic order & justice offences
CRIME

Citation: R v Akauola [2021] NSWDC 767
Court: District Court of New South Wales
Date: 17 September 2021
Judge: Neilson DCJ

Background

The offender, a 44-year-old man originally from Tonga with an extensive criminal history, pleaded guilty to three offences committed across two separate incidents in 2020. The first two offences arose from a home invasion at a Randwick unit in August 2020, where the offender and two associates entered the premises to confront a man over a drug transaction they regarded as fraudulent. During and after the confrontation, the victim was chased outside and assaulted by all three men, suffering cuts and bruising.

The third and most serious offence arose from the circumstances of the offender's arrest two months later. When police officers approached him in Riverwood to execute an outstanding arrest warrant, the offender fled on foot and, when caught, violently resisted arrest. In the struggle, he wounded Senior Constable Cooney, giving rise to a charge of wounding a police officer in the execution of his duty.

The offender also asked the court to take into account a related charge of resisting police, which was placed on a Form 1 (a mechanism under NSW law allowing a court to note additional offences without separately convicting for them, though they may affect the sentence imposed).

  • What were the appropriate indicative sentences for each of the three substantive offences, taking into account the offender's early guilty plea?
  • What aggregate sentence was appropriate given the principle of totality, the offender's criminal history, and the standard non-parole period applying to the wounding offence?
  • From what date should the sentences be backdated, having regard to the offender's time in custody and a revoked Intensive Correction Order (ICO)?

Decision

Neilson DCJ sentenced the offender on each of the three charges. For the home invasion (entering a dwelling house in company with intent to steal, contrary to s 111(2) of the Crimes Act 1900), his Honour set an indicative head sentence of one year, reduced to nine months after a 25% discount for the utilitarian value of the early guilty plea. The same approach applied to the assault occasioning actual bodily harm in company (s 59(2)), yielding another indicative sentence of nine months.

The most serious offence, wounding a police officer in the execution of his duty (s 60(3) of the Crimes Act 1900), carries a maximum of 12 years imprisonment and a standard non-parole period of five years. His Honour set an indicative head sentence of five years, reduced to three years and nine months after the 25% early plea discount. The indicative non-parole period for that offence, taken in isolation, would have been two years and nine months.

Applying the totality principle (which requires that the combined effect of multiple sentences not be crushing or disproportionate), his Honour declined to simply add the indicative sentences together. The three indicative head sentences totalled five years and three months, but his Honour considered an aggregate head sentence of four years with a non-parole period of three years to be appropriate. No special circumstances were found that would justify a departure from the standard ratio between the non-parole period and the balance of the sentence.

On the question of backdating, his Honour declined to backdate the sentences to the date of the arrest or to the commencement of earlier related proceedings. The sentences were ordered to commence on 23 March 2021, a date that reflected the offender's time in custody without undermining the purpose of a previously revoked ICO.

Orders Made

  • The offender was convicted on all three charges.
  • An aggregate sentence of four years imprisonment was imposed.
  • Non-parole period of three years, commencing 23 March 2021 and expiring 22 March 2024.
  • Balance of sentence of one year, commencing 23 March 2024 and expiring 23 March 2025.
  • No special circumstances were found.
  • The Form 1 offence (resisting police) was taken into account.

Key Takeaways

  • The District Court applied a 25% discount to each indicative sentence to reflect the utilitarian value of early guilty pleas, consistent with established NSW sentencing practice.
  • Where multiple offences are sentenced together, the totality principle operates to ensure the aggregate sentence is proportionate to the overall criminality, even where the arithmetic sum of individual sentences would produce a heavier result.
  • Under s 60(3) of the Crimes Act 1900, wounding a police officer in the execution of duty attracts a standard non-parole period of five years, which the court is required to treat as a statutory reference point when setting the non-parole component.
  • Backdating of a sentence does not follow automatically from time spent in custody. The District Court here declined to backdate further because doing so would have undermined the rationale for revoking an earlier Intensive Correction Order.
  • A Form 1 offence is not the subject of a separate conviction or sentence but is taken into account as part of the sentencing exercise for the substantive charges.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 59(2) (assault occasioning actual bodily harm in company)
- Crimes Act 1900 (NSW), s 60(3) (wounding a police officer in the execution of duty)
- Crimes Act 1900 (NSW), s 111(2) (entering a dwelling house in company with intent to steal)

Cases:
- Imbornone v R [2017] NSWCCA 144