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District Court 13 October 2023

R v Ngata

[2023] NSWDC 434

Assault & violenceTheft & property

Citation: R v Ngata [2023] NSWDC 434
Court: District Court of New South Wales
Date: 13 October 2023
Judge: Scotting DCJ

Background

The offender pleaded guilty in the Local Court to a single charge of robbery in company under s 97(1) of the Crimes Act 1900, which carries a maximum penalty of 20 years imprisonment. The matter was committed to the District Court for sentencing.

The offending occurred on 22 June 2022 at a residential address in Drummoyne. The offender and a co-offender attended the victim's home under the pretence of a drug delivery. Once inside, the co-offender made explicit threats of violence, including threats to "take out" the victim's knees and to track him down if he went to police. The victim, a 62-year-old man living alone, handed over $1,500 in cash and was driven to an ATM by the co-offender. The offender remained at the house during that trip.

After the victim returned home, the offender took the victim's mobile phone and conducted bank transfers totalling $7,002 from the victim's account to his own. The offenders also took the victim's car, demanded the passcode to his phone, and removed the hard drive from his home CCTV system before leaving.

  • The appropriate head sentence and non-parole period for the robbery in company offence, accounting for objective seriousness, personal circumstances, and the utilitarian value of the guilty plea
  • Whether special circumstances existed to justify a non-parole period shorter than the statutory default (one-third of the head sentence)
  • The application of the standard of proof for findings of fact at sentencing, consistent with R v Olbrich
  • The weight to be given to the offender's background, mental health, drug addiction, and prospects of rehabilitation

Decision

Scotting DCJ approached fact-finding at sentencing by applying the standard set out in R v Olbrich: adverse findings required proof beyond reasonable doubt, while findings favourable to the offender required proof on the balance of probabilities. The offender received a 25% discount on sentence for his early guilty plea in the Local Court, as required by s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999.

The court considered the offender's background in detail. He grew up in an environment of family violence and alcohol abuse following the death of his elder sister. He developed significant drug dependency, including addiction to methamphetamine, which was directly connected to the offending. A psychological report tendered on his behalf identified mental health conditions linked to that drug use.

Scotting DCJ noted positive signs since the offender's arrest, including engagement with programs in custody, a letter of apology to the court, and a supportive relationship with his partner and her children. The judge was satisfied the offender demonstrated genuine contrition and had reached a crossroads in his life.

The court found special circumstances existed, principally because the offender's drug-related mental health needs would require extended community supervision and access to rehabilitation services on release, potentially including residential rehabilitation. This justified a non-parole period shorter than the default proportion. The court also acknowledged that COVID-19 restrictions had made the offender's time in custody more onerous.

Orders Made

  • The offender was convicted of robbery in company contrary to s 97(1) of the Crimes Act 1900
  • A term of imprisonment of 4 years was imposed, with a non-parole period of 18 months
  • The sentence was backdated to commence on 13 October 2022
  • Non-parole period expires 12 April 2024; head sentence expires 12 October 2026
  • The offender will be eligible to apply for parole on 12 April 2024

Key Takeaways

  • A guilty plea entered in the Local Court attracted a 25% discount on sentence under s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999, applied before calculating the final term.
  • Special circumstances were established where the offender had significant drug-related mental health conditions requiring extended post-release supervision and access to rehabilitation, justifying a non-parole period well below the standard one-third proportion.
  • Under R v Olbrich, the sentencing court applied different standards of proof depending on whether a factual finding was adverse or favourable to the offender, a well-established principle the District Court applied here without controversy.
  • Genuine contrition, supported by a letter of apology and engagement with custodial programs, was treated as a mitigating factor under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999.
  • COVID-19 restrictions on NSW prisoners were taken into account as a factor making the offender's time in custody more burdensome, consistent with sentencing practice in this period.

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(2)(a)

Cases
- R v Olbrich (1999) 199 CLR 270
- R v Henry (1999) 46 NSWLR 346
- Legge v The Queen [2007] NSWCCA 244