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District Court 4 April 2023

R v Lual

[2023] NSWDC 336

Assault & violenceTheft & property

Citation: R v Lual [2023] NSWDC 336
Court: District Court of New South Wales
Date: 4 April 2023
Judge: Haesler SC DCJ

Background

On the evening of 26 December 2021, two men broke into a home in southern Wollongong while a 59-year-old male resident and his 56-year-old female friend were present. Both offenders wore face coverings and demanded car keys. When the male resident refused, both offenders attacked him, throwing punches to his head, chest, and face.

The violence escalated when the resident re-entered his home and confronted the offenders in the kitchen, where one was holding a knife above his head. The resident grabbed the blade during a struggle, sustaining a serious laceration to his left hand that required admission to the Sydney Hand and Eye Hospital and surgical repair. He was left with permanent scarring.

A neighbour, hearing calls for help, entered the home and intervened by pushing the offenders and wresting the knife away. For that intervention, he was punched in the nose and suffered a minimally displaced bilateral nose bone fracture. Both offenders fled but were arrested nearby shortly after. DNA evidence linked the offender, Deng Lual, to a set of keys found at the scene.

  • What was the appropriate sentence for Lual on the charge of aggravated break and enter with commission of a serious indictable offence (reckless wounding), being in company, under s 112(2) of the Crimes Act 1900 (NSW)?
  • What was the appropriate sentence for the related charge of assault occasioning actual bodily harm in company under s 59(2) of the Crimes Act 1900 (NSW)?
  • How should the parity principle apply in light of the earlier sentence imposed on co-offender Kegan, who received a greater guilty plea discount?
  • What weight should be given to Lual's deprived background, refugee history, trauma, cognitive impairments, and youth in moderating his moral culpability?
  • Were there special circumstances justifying a non-parole period that departs from the statutory ratio?

Decision

Haesler SC DCJ placed the objective seriousness of the offending slightly below the middle of the range, consistent with the position advanced by both the Crown and defence. The court accepted that no planning was apparent, that the knife may have been picked up inside the premises rather than brought to the scene, and that no rational explanation had been offered for the home invasion. Despite these observations, the court held that the gravity of the consequences, including serious physical harm to two victims, one of them an entirely innocent bystander, meant only a meaningful custodial sentence was appropriate.

On the parity question, the court compared Lual's situation with that of co-offender Kegan, who had been sentenced earlier in R v Keegan [2022] NSWDC 715. Kegan received an aggregate of four years and six months with a non-parole period of two years and six months, benefiting from a 25% guilty plea discount. Lual's plea was late, attracting only a 10% reduction. The court found little to distinguish the two offenders in terms of role or culpability: both participated equally in a joint criminal enterprise, and any difference in their conduct regarding the knife did not clearly separate them. The later and smaller plea discount accounted for the difference in the ultimate sentence.

The court gave substantial weight to Lual's background. He was born in South Sudan, spent time in a refugee camp as a young child, migrated to Australia in 2006, and experienced family violence, instability, and difficulty adjusting to life in Australia. A neuropsychological report identified cognitive impairments. The court applied the principle from Bugmy v The Queen (2013) 249 CLR 571 that the effects of deprivation and trauma do not diminish over time and must be given full weight at sentencing. The court also acknowledged that general deterrence and community protection remained relevant sentencing purposes that could not be entirely displaced by mitigating personal circumstances.

A finding of special circumstances was made, allowing the non-parole period to fall below the standard one-third ratio. The court structured the sentence to provide an extended period of supervised parole, giving Lual an opportunity to demonstrate rehabilitation in the community. A separate Local Court sentence of six months arising from an unrelated matter dealt with while Lual was on remand caused the commencement date to be adjusted to 5 July 2022.

Orders Made

  • Aggregate sentence of 5 years and 2 months, commencing 5 July 2022.
  • Non-parole period of 2 years and 8 months, from 5 July 2022, with eligibility for parole consideration from 4 March 2025.
  • Balance of sentence (parole period) of 2 years and 6 months, commencing 5 March 2025, with total sentence expiring 4 September 2027.
  • Indicated sentence components: aggravated break and enter, 4 years and 10 months (non-parole period 2 years and 3 months); assault occasioning actual bodily harm, 1 year and 3 months.
  • Both indicated sentences reflect a 10% reduction for the utilitarian value of the guilty plea.
  • Special circumstances found.
  • Sentence commencement date adjusted to 5 July 2022 to account for a separate Local Court sentence of 6 months imposed while the offender was on remand.

Key Takeaways

  • The parity principle required the court to compare the sentences of co-offenders by reference to their respective culpability, personal histories, and plea discounts, even where those personal histories differed substantially.
  • A late guilty plea attracted only a 10% utilitarian discount, compared with the 25% discount available to the co-offender who pleaded early, producing a meaningfully higher aggregate sentence despite broadly similar roles.
  • Under Bugmy v The Queen, a background of severe deprivation, childhood trauma, and refugee experience does not lose its mitigating weight over time and must be given full consideration at sentencing, even for serious offending.
  • Special circumstances can be found to extend the parole component of a sentence where rehabilitation and community supervision are considered particularly important for a young offender with a deprived background.
  • A neighbour who intervenes to assist a victim and suffers injury as a result is a distinct victim for sentencing purposes, and some accumulation of sentences was warranted to reflect the harm caused to two separate individuals in different circumstances.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 59(2), 112(2)

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Lau v R [2010] NSWCCA 43
- Nasrallah v R [2021] NSWCCA 207
- R v Keegan [2022] NSWDC 715