Citation: R v Fuimaono [2023] NSWDC 41
Court: District Court of New South Wales
Date: 3 March 2023
Judge(s): Mahony SC DCJ
Background
The offender, a 24-year-old man, pleaded guilty to two offences arising from an incident on 25 April 2022 at a hotel in Mortdale, NSW. He entered the hotel, presented a threatening written note to a bar employee demanding money, jumped over the bar counter, and grabbed the employee by the hair before being restrained by patrons and held until police arrived. A knife fell from his pocket during the incident and was seized by police.
The offender had a significant prior record, including two earlier sets of robbery-related offences committed when he was 18 and 20 years old respectively. He had been released on parole only ten weeks before committing the index offences, and his parole was revoked following his arrest. Psychological evidence established diagnoses of stimulant use disorder, alcohol use disorder, and gambling disorder, all moderate in severity and in remission in custody.
At the time of the offence, the offender had consumed alcohol, ice, MDMA, and heroin. He attributed his reoffending to substance addiction and acknowledged the need for intensive rehabilitation. His mother provided evidence confirming his addiction history, his remorse, and his positive conduct during the brief period he had been at liberty before the index offending.
Legal Issues
- What sentence was appropriate for assault with intent to rob, given the objective seriousness of the offending, the offender's prior convictions for similar offences, and his personal circumstances including drug dependency?
- Whether special circumstances existed to justify a non-parole period that departed from the standard statutory ratio (that is, the usual proportion of non-parole to total sentence).
- Whether the offender should be recommended for assessment for the Compulsory Drug Treatment Correctional Centre (CDTCC) Program under the Drug Court Act 1998.
Decision
His Honour found that the objective seriousness of the offending was significant. The assault involved a threatening written demand, the offender jumping the bar counter, and the physical grabbing of a victim by the hair, all while the offender was armed with a knife. The Crown characterised the conduct as startling, forceful, and aggressive, and the court accepted that the victim would have been genuinely frightened.
The court acknowledged several mitigating factors: the guilty plea, the offender's youth, his drug addiction as a background circumstance, and his positive (though brief) conduct on parole before the index offending. The court also noted the risk of institutionalisation, given the offender had spent most of his young adult life in custody. However, the prior record for two sets of similar offences significantly limited the weight given to those mitigating factors.
His Honour found special circumstances justifying a longer parole period than the statutory norm. The court reasoned that the offender had not previously had access to the CDTCC Program and that an extended period of supervised parole, combined with that program, would better facilitate rehabilitation and community reintegration. The total sentence imposed for the robbery offence was 4 years and 6 months, with a non-parole period of 2 years and 6 months.
The knife possession offence attracted a fixed term of 6 months, ordered to be served concurrently. The court also directed the registrar to refer the matter to the Drug Court for assessment of the offender's suitability for the CDTCC Program, finding participation would assist his rehabilitation.
Orders Made
- Convicted of assault with intent to rob (s 94(a), Crimes Act 1900); sentenced to 4 years and 6 months imprisonment, with a non-parole period of 2 years and 6 months commencing 25 April 2022 and terminating 24 October 2024; balance of term from 25 October 2024 to 24 October 2026.
- Convicted of custody of a knife in a public place (s 11C(1), Summary Offences Act 1988); sentenced to a fixed term of 6 months imprisonment commencing 25 April 2022, to be served concurrently with the above sentence.
- The registrar directed to refer the file to the Drug Court for assessment of the offender's suitability for the Compulsory Drug Treatment Correctional Centre Program under s 18B(2) of the Drug Court Act 1998.
Key Takeaways
- A prior record for similar offences substantially limits the mitigating weight of youth and drug addiction in sentencing, even where those factors are well established by psychological evidence.
- Special circumstances justifying a departure from the standard non-parole ratio can be found where a longer supervisory period on parole, combined with a dedicated drug treatment program, is likely to assist the offender's rehabilitation and reintegration.
- The District Court used its power under s 18B(2) of the Drug Court Act 1998 to recommend CDTCC Program assessment, treating the offender's lack of prior access to that program as a relevant consideration in structuring the sentence.
- Substance intoxication at the time of offending was treated as relevant background context explaining the offending, but did not operate as a straightforward mitigating factor given the offender's pattern of drug-related recidivism.
- Where an offender has demonstrated positive steps on parole (such as employment and engagement with drug rehabilitation) before reoffending, those steps may be noted but carry limited weight when the reoffending is serious and follows a pattern of similar conduct.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 94(a) (assault with intent to rob)
- Summary Offences Act 1988 (NSW), s 11C(1) (custody of knife in a public place)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 5
- Drug Court Act 1998 (NSW), s 18B(2)
Cases
- BP v R (2010) A Crim R 379; [2010] NSWCCA 159
- Decision Restricted [2017] NSWCCA 60
- R v Coleman (1990) 47 A Crim R 307
- R v Heikkinen [2006] NSWCCA 50
- Veen v R [No. 2] (1988) 164 CLR 465