R v Malupo

The offender's evidence

1. The offender relied on an affidavit sworn on 26 October 2021 in which he set out his family history. He completed Year 12 at school but described his schooling as "challenging". He did however maintain reasonable grades. He was exposed to domestic violence in the home. His father was an authoritarian disciplinary figure and would often take his alcohol fuelled anger out on the offender or his siblings.
2. Upon leaving school, the offender obtained employment as a landscaper and after several years moved to a different landscaping company in the position of Supervisor. In 2019, he started his own landscaping company with his brothers. He has employment available to him with that company upon his release from custody.
3. The offender deposed that in the period leading up to the offending he was married and had been in a relationship with his wife for approximately three years. That relationship ended since he has been remanded in custody. At the time of the offending, he was off work due to the COVID-19 pandemic, which led to difficulties in his marriage. He was using drugs recreationally, which developed into a dependency.
4. The offender expressed that he was especially apologetic to the victim in this matter and had drafted a letter of apology to him. He had been employed whilst in custody and on remand he had a lot of time to think about where he was going wrong in life. On two occasions he had been reprimanded for prison breaches, however, they occurred in the context of him trying to defend himself from other inmates. He had not been able to complete any courses whilst on remand.
5. The offender referred to the significant restrictions on prisoners due to the COVID-19 pandemic. At Parklea Correctional Centre he had been locked in his cell for weeks at a time and on one occasion for a period of three weeks. He had not been able to see his family in person for an extended period of time.
6. The offender tendered a report from Mr O. Brecht, psychologist, dated 21 September 2021 (Ex 1). Mr Brecht assessed the offender on 16 September 2021 for one hour via audio visual link. He took a family and developmental history which included the offender witnessing and experiencing regular violence, alcohol abuse and neglect as a child. He also took a history of an eventful schooling experience in which the offender described himself as a disruptive student who received suspensions on numerous occasions and had a poor relationship with his teachers. Since finishing school, he has worked mostly as a landscaper.
7. The offender reported abusing cannabis, pain killers and Xanax, together with alcohol to numb the pain of his separation from his wife. He denied ever having been diagnosed with a mental health issue.
8. Under the heading "Index Offence and Attitudes", the offender described being very angry at life on the night before the offence and becoming agitated. He stated that due to his intoxication he wasn't "thinking straight" and took his anger out on someone that didn't deserve it.
9. Mr Brecht assessed the offender as being within the low to moderate range for violent reoffending. He further opined that at the time of the offending the offender would have met clinical criteria for a diagnosis of Alcohol Use Disorder, Severe Cannabis Use Disorder and Mild Sedative, Hypnotic or Anxiolytic Use Disorder. These disorders were now in early remission in a controlled environment.
10. Mr Brecht then set out a treatment plan which included engagement in psychological counselling, abstinence from all illicit substances, attendance at AA and for the offender not to associate with antisocial peers or influences.

The Crown submissions

1. The Crown relied on a written outline of submissions which set out well established sentencing principles. The Crown referred to the guideline judgment in R v Henry & Ors (1996) 46 NSWLR 346, which specifically relates to an offence of armed robbery but has many characteristics common to offences contrary to s 95. In Azzi v R [2008] NSWCCA 169 at [37], the court accepted that the guideline judgment in Henry is a "relevant reference point", however in the circumstances of this case the guideline judgment could be treated with slightly less caution due to the involvement of the co-offender's weapon.
2. The Crown submitted that it was not in breach of the principle in The Queen v De Simoni (1981) 147 CLR 383 for the court to take into account that the offence was committed in company and that the co-offender was armed with an offensive weapon, as the specific offences containing these elements (namely s 97(1)) also carries a maximum penalty of 20 years imprisonment, referring to Moore v R [2005] NSWCCA 407 at [33].
3. The Crown referred to the seven factors identified in Henry, namely, that he was a young offender with little to no criminal history and the offence involved use of a weapon like a knife capable of killing or inflicting serious injury. The offender was 23 years at the time of the offence with a small number of prior convictions. He was sentenced to concurrent community correction orders for 18 months on 10 June 2020, however, his criminal history was not lengthy. Also, the co-offender was carrying a claw hammer which he used to hit the victim on the head.
4. The Crown submitted that there was some planning involved in this offence having regard to the following: "a. The offender and co-offender changed clothes in between the time they left the offender's apartment and when they go to the train station; b. The offender was wearing a hood or a face mask to shield his identity; c. The victim had only just attended a nearby ATM to withdraw cash before walking to the train station where the offence took place; d. The offender and co-offender followed the victim onto a train platform where there were no other people; and e. The co-offender grabbed a claw hammer from his car before walking onto the train platform where the victim was."
5. The Crown submitted there was an available inference to be drawn from the agreed facts that the offender and co-offender saw the victim withdrawing money from the ATM and decided to follow him onto the train platform and rob him. The Crown submitted further that the offender and co-offender were out for the purpose of committing an offence.
6. The Crown submitted that the nature of the actual violence may be taken into account when assessing the seriousness of the offence, relying on Georgopolous v R [2010] NSWCCA 246 at [28]. The assault here consisted of the co-offender hitting the victim in the head with a steel claw hammer. However, the victim described both the offender and co-offender as being aggressive and demanding. Further, when the victim ran away, they pursued him.
7. The Crown submitted the nature of the violence involved in this offence was serious and could easily have resulted in more substantial injuries.
8. The Crown conceded that the victim was not in a traditionally "vulnerable" position. However, he was vulnerable in the sense that he was on a train platform late at night when there were no other people around. The Crown noted that the victim was able to escape the offenders before they were able to take anything from him.
9. The Crown submitted that unlike Henry, this was a matter where there was an early plea entered in the Local Court. However, there was also a strong Crown case based on the CCTV evidence.
10. The Crown referred to a number of comparable cases and submitted that the offending here fell at the mid-range of objective seriousness for an offence pursuant to s 95(1) of the Crimes Act 1900.
11. The Crown submitted the following were aggravating factors pursuant to s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 ("CSPA").

Section 21A(2)(c) - actual or threatened use of a weapon

1. The Crown submitted that if the court does not take the use of the weapon into account in the assessment of the objective seriousness of the offence, the court can take it into account as an aggravating factor.

Section 21A(2)(d) - criminal record

1. The Crown submitted the offender's criminal history would disentitle him to leniency as it was not his first time before the court.

Section 21A(2)(e) - in company

1. The Crown submitted the plea was entered on the basis of a joint criminal enterprise with the co-offender and it was clear that the offender and co-offender were in company during the offence.

Section 21A(2)(j) - conditional liberty

1. The offence was committed whilst the offender was on conditional liberty, namely, several concurrent community correction orders for a period of 18 months.
2. In respect of the risk of recidivism and the offender's prospects of rehabilitation, the Crown noted that the psychologist had assessed the offender as being a medium risk of reoffending. The offender was however entitled to a 25% utilitarian discount on sentence in respect of his early plea of guilty pursuant to s 21A(3)(k) of the CSPA.
3. The Crown submitted the s 5 threshold had been crossed and no other penalty other than a sentence of full-time imprisonment was appropriate in the circumstances. Further, the Form 1 offence would increase the sentence to be imposed due to the greater need for specific deterrence. In addition, the offender was subject to concurrent community correction orders for 18 months for the following offences: 1. Supply small quantity of prohibited drug; 2. Two offences of custody of knife in a public place; and 3. Drive under the influence of alcohol.
4. The Crown submitted that the offender should be resentenced for these offences. It constituted separate offending. The Crown noted the offender had served five months of his community correction orders before the index offence.
5. In her oral submissions the Crown submitted that no weight should be given to self-serving statements made by the offender in his affidavit and in the psychologist report (Ex. 1). For example, paragraphs 17 and 21 of the offender's affidavit and paragraphs 20 and 21 of Exhibit 1 contained self-serving statements, and in respect of his prior use of cannabis, there were matters that were inconsistent with his prior offending in 2019. It was submitted that the offender had not been entirely truthful to the psychologist in respect of his prior consumption of cannabis.
6. The Crown conceded that a finding of special conditions was open to the court, however, the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 did not apply here. Whilst the offender's childhood may have been tough, it did not rise to the level of "deprivation" so as to attract the Bugmy principle.

The offender's submissions

1. Counsel for the offender submitted that the objective seriousness of the offending fell at about the middle of the objective range of seriousness for an offence pursuant to s 95. It was conceded that the injury suffered by the victim was significant, however, it was the co-accused who struck the blow.
2. The offender submitted that he had embraced his culpability for the offence. The court would note an absence of any juvenile criminal history and he was now 23 years of age. The offender had come from a somewhat dysfunctional family and had been exposed to domestic violence and binge drinking which were relevant to his sentence. He had also expressed remorse and contrition.
3. It was submitted that there was rudimentary planning involved and the offending was "clumsy". The offender conceded that an inference could be rationally drawn that he and the co-offender saw the victim at the ATM and hence knew that he had money. The offender now was contrite and regretted his actions.
4. It was noted that the custody records demonstrated that the offender had spent two periods at Parklea on remand, one for four months and one for a period of one month. He had been in custody for almost 12 months during the worst of the COVID-19 pandemic, which led to significant isolation and restrictions on access to visitors. He was now located in the Mid-North Coast Correctional Centre where there was reported another COVID-19 outbreak. These onerous conditions of his custody should be taken into account on sentence.
5. In respect of the call up of his community correction orders, counsel submitted there was no report on the amount of community service which had been completed. It was submitted that an appropriate sentence would be a short fixed term plus a sentence for the index offence, with the principle of totality to be applied to all of the offending. The Form 1 offence was completely unrelated offending and that should be taken into account on sentence.
6. The offender submitted that a finding of special circumstances should be made. The offender was still a very young man, it was his first time in custody and he had endured custody during the COVID-19 pandemic. He required a longer period on parole for the engagement of psychological services to address his drug and alcohol issues and relapse prevention. It was his abuse of cannabis and prescription drugs which had led to the index offence.
7. In reply to the Crown submissions, counsel for the offender submitted that the offender's self-reporting of cannabis to the psychologist was not a matter that went to mitigation of his sentence. However, it gave context to him self-medicating prior to the index offence. It was noted that the offender had no history of violence and no disposition towards violence.
8. It was further submitted that whilst the evidence may fall short of profound deprivation to engage the principles in Bugmy, the court could still consider the offender's childhood and his exposure to binge drinking, domestic violence and the like. It was to his credit that this did not give rise to delinquent behaviour on his part and had not translated to his adult life. With respect to the custodial infractions referred to by the Crown, it was submitted that that reflected life in gaol for all inmates. Finally, it was submitted the offender had good prospects of rehabilitation.

Determination

1. Section 3A of the CSPA sets out the purposes of sentencing as follows: "3A The purposes for which a Court may impose a sentence on an offender are as follows: (a) To ensure that the offender is adequately punished for the offence, (b) To prevent crime by deterring the offender and other persons from committing similar offences, (c) To protect the community from the offender, (d) To promote the rehabilitation of the offender, (e) To make the offender accountable for his or her actions, (f) To denounce the conduct of the offender, (g) To recognise the harm done to the victim of the crime and the community."
2. I accept the Crown submission that the Henry guideline judgment is a relevant reference point for an offence under 95(1) of the Crimes Act. Of the seven factors identified in Henry, the following matters are relevant here to the determination of the objective seriousness of the offending. First, the offender was young, namely, 23 years of age at the time of the offence and had a limited criminal history. A weapon capable of killing or inflicting serious injury was used by the co-offender, namely, a claw hammer with which the victim was struck to the head. There was also some planning involved in that the offender was wearing a hood and a face mask to shield his identity. A rational inference to be drawn from the agreed facts, as conceded by the offender, was that the offender and co-offender observed the victim to withdraw cash from an ATM before walking to the train station. They then followed the victim to the train platform, where there were no other people around. The co-offender took a claw hammer from his car and the first words spoken by the offender to the victim were, "Brother, where's the money?"
3. A further relevant factor is the nature of the violence, which in this case consisted of the co-offender hitting the victim in the head with a steel claw hammer, resulting in a significant injury. I accept the Crown submission that the victim was somewhat vulnerable in the sense that he was on a train platform late at night when there were no other people around. No money was taken but only because the victim was able to escape.
4. Having regard to the whole of the circumstances, the objective seriousness of the offending fell within the mid-range for an offence pursuant to s 95(1) of the Crimes Act.
5. General deterrence is important in sentencing for this type of offence. As has been often reinforced by the appellate courts, it is a fundamental right for any citizen to go about his or her business without fear of being attacked. A clear message must be sent to like-minded members of the community that Parliament has imposed severe maximum penalties for offences of this kind, and the courts will impose condign punishment in appropriate cases. The Henry guideline judgment relating to offences pursuant to s 97 of the Crimes Act makes that clear.
6. Specific deterrence is also important here. Whilst the offender had limited criminal history, he was on conditional liberty at the time of the offending, being subject to four concurrent community correction orders for a period of 18 months. He must understand that if he continued to reoffend he would be subject to increasingly lengthy punishment.
7. The aggravating factor relied on by the Crown here, pursuant to s 95(2), is that the offender intentionally inflicted actual bodily harm on any person pursuant to s 95(2)(b). Notwithstanding that it was the co-offender who struck the victim, the offender was legally responsible as he was part of a joint criminal enterprise. It is therefore an aggravating factor that the offence was committed in company of the co-offender pursuant to s 21A(2)(e) of the CSPA. The presence of the co-offender no doubt gave weight to the demand made by the offender of the victim for money and caused additional fear of attack to the victim.
8. As I have taken into account the actual use of a weapon in assessing the objective seriousness of the offence, I do not take that factor into account as an aggravating factor on sentence.
9. Whilst the offender's criminal history was limited, he was subject to community correction orders in respect of recent offending and therefore his criminal antecedents disentitle him to leniency in sentencing. The fact that he was on conditional liberty is an aggravating factor pursuant to s 21A(2)(ja) of the CSPA.
10. It is a mitigating factor that the offender entered a plea of guilty in the Local Court and is entitled to a 25% utilitarian discount on sentence.
11. I accept the offender's expression of remorse and contrition for his offending. I note that he was assessed as being a medium risk of reoffending, and as falling within the low to moderate range of violent reoffending by Mr Brecht. His prospects of rehabilitation are no doubt closely related to his drug and alcohol rehabilitation and relapse prevention. It is clear that he will need supervision and treatment as outlined by Mr Brecht in the community. Thus, his prospects of rehabilitation are somewhat guarded.
12. I take into account the following subjective matters. First, the offender was exposed to regular violence, alcohol abuse and neglect as a child. The Crown accepted the history recorded by Mr Brecht as to his family and developmental history in which the offender described his childhood as "very tough". Notwithstanding that, the offender completed High School and had ongoing prosocial relationships with many of his siblings and his mother. I accept the Crown submission that his childhood was not one of profound deprivation so as to attract the Bugmy principles. Whilst the offender's young age at the time of the offending is evident, youth is part of the matrix that the Henry guideline judgment has taken into account.
13. I accept that the COVID-19 pandemic has necessitated onerous conditions for those serving custodial sentences. Corrective Services have imposed measures for the safety of the whole of the prison population which severely restrict the conditions of custody, including lockdowns and limitations on access visits and educational programs. These onerous conditions also impact on the mental health of inmates and create additional hardship for young and first time offenders - see DPP (Cth) v Saadieh [2021] NSWSC 1186. I am satisfied that these matters mean that the offender has suffered and will continue to suffer real hardship in custody and I intend to take this into account in mitigating his sentence.
14. I have taken into account the maximum penalty of 20 years imprisonment prescribed for an offence pursuant to s 95(1) of the Crimes Act as a guidepost in the sentencing process. I also take into account that the offence on the Form 1, of resist arrest pursuant to s 58 of the Crimes Act 1900, is an entirely separate offence and must be taken into account so as to accumulate the sentence in respect of the index offence. Having regard to the objective seriousness of the offending, the aggravating and mitigating circumstances set out above and the offender's subjective circumstances, I am satisfied that the threshold in s 5 of the CSPA has been crossed and that no penalty other than imprisonment is appropriate in all of the circumstances.
15. I also find special circumstances pursuant to s 44(2) of the CSPA based on the offender's youth, that this is his first time in custody, and that his custody is subject to onerous conditions brought about by the COVID-19 pandemic. I intend to vary the statutory ratio between head sentence and non-parole period so that he has a longer period under supervision to address his drug and alcohol issues. The appropriate sentence is a head sentence of three years and six months imprisonment, with a non-parole period of two years. The sentence is to be backdated, subject to the matters referred to below.

Call-up for breach of community correction orders

1. Concurrent community correction orders for a period of 18 months, pursuant to s 8, were ordered in relation to the following offences: 1. H74720587/1 - Supply prohibited drug less than small quantity (cannabis) pursuant to s 25(1) of the Drug Misuse & Trafficking Act 1985 ("DMTA"). The offence occurred on 18 November 2019. 2. H74720587/4 - Custody of knife in public place pursuant to s 11C(1) of the Summary Offences Act 1988. This offence also occurred on 18 November 2019. 3. H75391551/1 - Drive vehicle under influence of alcohol - first offence, pursuant to s 112(1)(a) of the Road Transport Act 2013. This offence occurred on 26 December 2019. 4. H75391551/3 - Custody of knife in public place - first offence, pursuant to s 11C(1) of the Summary Offences Act 1988. This offence also occurred on 26 December 2019.
2. I have read the fact sheets in respect of each of the offences. Each offence was at the lower end of the range of objective seriousness and I intend to impose an aggregate sentence of a fixed term of six months. The indicative sentences are as follows: 1. Supply prohibited drug - two months imprisonment; 2. Custody of knife in public place - three months imprisonment; 3. Drive vehicle under influence of alcohol - three months imprisonment; 4. Custody of knife in public place - three months imprisonment.
3. The sentence will be backdated to commence on 10 November 2020 and will have expired on 9 May 2021.

Sentence

1. Applying the principle of totality to all of the offending conduct, I intend to impose a non-parole period of two years for the index offence to commence on 10 February 2021 and to terminate on 9 February 2023. The balance of term will be a period of one year and six months, expiring on 9 August 2024.

Orders

1. I hereby order as follows: 1. In respect of the four breach of bond matters for which you have been called up for sentence, I impose an aggregate sentence of six months imprisonment to commence on 10 November 2020 and to expire on 9 May 2021. 2. You are convicted of the offence of aggravated assault with intent to rob and recklessly inflict actual bodily harm, pursuant to s 95(1) of the Crimes Act 1900. 3. I sentence you to a non-parole period of two years imprisonment to commence on 10 February 2021 and to terminate on 9 February 2023. 4. The balance of term will be a period of one year and six months, commencing on 10 February 2023 and expiring on 9 August 2024. 5. Your parole eligibility date will be 9 February 2023. 6. I have certified that I have taken into account the matter on the Form 1.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 October 2021