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District Court 9 June 2023

R v Fakaosilea

[2023] NSWDC 212

Assault & violenceTheft & propertyTraffic & driving

Citation: R v Fakaosilea [2023] NSWDC 212
Court: District Court of New South Wales
Date: 9 June 2023
Judge: Scotting DCJ

Background

The offender appeared before the District Court for sentencing on two counts of robbery in company under s 97(1) of the Crimes Act 1900, each carrying a maximum penalty of 20 years imprisonment. The offences arose from two separate incidents in Sydney's CBD on the evening of 10 September 2021. In the first, the offender participated in a group robbery of a man and his partner at Belmore Park, during which a knife was used and the victim was physically assaulted and robbed of his phone, shoes, wallet, and other items. In the second, the offender was involved in assaulting and robbing a man inside a KFC on George Street, taking a bum bag containing cash, bank card, and electronic items.

The offender also brought a severity appeal against a sentence imposed by the Mt Druitt Local Court on 4 May 2023, relating to separate offences of police pursuit and knowingly driving a stolen conveyance. That sentence comprised an aggregate 18-month term with a 10-month non-parole period, and a three-year licence disqualification.

  • What was the appropriate aggregate sentence for the two robbery in company offences, accounting for the guilty plea discount, the offender's personal circumstances, and the need for special circumstances?
  • Whether the Local Court sentence for the driving offences was manifestly excessive and should be reduced on severity appeal.
  • Whether the licence disqualification period imposed by the magistrate was appropriate.

Decision

On the robbery in company matters, Scotting DCJ recorded convictions and imposed a term of imprisonment, being satisfied that no other sentence was appropriate under s 5 of the Crimes (Sentencing Procedure) Act 1999. A 25% discount applied to reflect the guilty plea entered in the Local Court: s 25D(2)(a). The individual indicative sentences, after discount, were 3 years and 4 months for the first count, and 4 years for the second.

His Honour found special circumstances, noting the offender's relative youth, longstanding substance use disorder, and the benefit of a longer parole period to support rehabilitation, employment, and community reintegration. An aggregate sentence of 4 years and 6 months imprisonment with a non-parole period of 1 year and 9 months was imposed, commencing 17 March 2023. When accumulated on the earlier driving offences sentence, the effective total was 5 years and 6 months with a non-parole period of 2 years and 9 months.

On the severity appeal, his Honour allowed the appeal, finding the Local Court sentence was excessive. The aggregate term was reduced to 12 months with a non-parole period of 6 months, to date from 16 January 2023. The licence disqualification was reduced from three years to the statutory minimum of 12 months, on the basis that holding a licence could assist the offender in finding employment upon release.

Orders Made

Severity appeal (driving offences):
- Appeal allowed; Local Court sentence set aside
- Aggregate term of 12 months imprisonment with a 6-month non-parole period, commencing 16 January 2023
- Non-parole period to expire 15 July 2023; head sentence to expire 15 January 2024
- Licence disqualification reduced to 12 months (minimum period)

Robbery in company matters:
- Offender convicted on both counts
- Special circumstances found
- Aggregate term of 4 years and 6 months imprisonment with a non-parole period of 1 year and 9 months, commencing 17 March 2023
- Non-parole period to expire 16 December 2024; head sentence to expire 16 September 2027
- Eligible for parole from 16 December 2024
- Effective total (accumulated): 5 years and 6 months with a non-parole period of 2 years and 9 months

Key Takeaways

  • A guilty plea entered in the Local Court attracted a 25% sentence discount under s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999, even where the matter was ultimately sentenced in the District Court.
  • Special circumstances were established where the offender's youth, substance use disorder, and rehabilitation needs justified extending the parole period beyond the standard ratio, to allow for greater supervision and support upon release.
  • In allowing the severity appeal, the District Court reduced both the custodial term and the disqualification period for the driving offences, applying the principle that an ancillary order, such as a licence disqualification, should be proportionate and account for practical consequences for the offender after release.
  • Adverse factual findings at sentencing were assessed to the standard of beyond reasonable doubt, while findings favourable to the offender were assessed on the balance of probabilities, consistent with R v Olbrich (1999) 199 CLR 270.
  • Group robberies involving weapons, physical violence, and multiple victims attracted substantial head sentences, with the second robbery in company count (the KFC assault) drawing the heavier indicative term of 4 years after discount.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1) (robbery in company)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A, 25D, 53A

Cases:
- R v Olbrich (1999) 199 CLR 270
- R v Henry (1999) 46 NSWLR 346
- Legge v The Queen [2007] NSWCCA 244
- Attorney General's Application No 1 of 2022 (2002) 56 NSWLR 147