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R v Saipani [2020] ACTSC 228 | Case summary | Zoe

ACTACTSC

R v Saipani

[2020] ACTSC 228

Supreme Court of the ACT|2020-08-18|Before: Murrell CJ

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At a glance

Source facts

Court

Supreme Court of the ACT

Decision date

2020-08-18

Before

Murrell CJ

Catchwords

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE –
Judgment and Punishment – Sentence – Aggravated burglary by joint
commission – Home invasion – Parity and co-offenders –
Co-offenders sentenced for common assault and possess weapon

Source

Original judgment source is linked above.

Catchwords

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE –Judgment and Punishment – Sentence – Aggravated burglary by jointcommission – Home invasion – Parity and co-offenders –Co-offenders sentenced for common assault and possess weapon

Judgment

Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: R v Saipani (No 2)

Citation: [2020] ACTSC 228

Hearing Date: 18 August 2020

Decision Date: 18 August 2020

Before: Murrell CJ

Decision: Offender sentenced to two years and four months’ imprisonment, with a nonparole period of fourteen months’ imprisonment.

Catchwords: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Aggravated burglary by joint commission – Home invasion – Parity and co-offenders – Co-offenders sentenced for common assault and possess weapon

Legislation Cited: Crimes (Sentencing) Act 2005 (ACT) ss 7, 33 Criminal Code 2002 (ACT) ss 45A, 312

Cases Cited: Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 Hogarth v The Queen [2012] VSCA 302; 37 VR 658 R v Hanrahan [2020] ACTSC 10 R v Hiron [2018] NSWCCA 10 R v Keir [2016] ACTSC 266 R v Lau; R v Lutze [2019] ACTSC 353 R v Lau [2020] ACTSC 120 R v Lutze [2020] ACTSC 121 R v Saipani [2020] ACTSC 191 Wan v The Queen [2017] NSWCCA 261 White v The Queen [2016] NSWCCA 190; 261 A Crim R 302 Wong v The Queen [2001] HCA 64; 207 CLR 584

Parties: The Queen (Crown) Javarne Saipani (Offender)

Representation: Counsel M Howe (Crown) F Purnell SC (Offender)

Solicitors ACT Director of Public Prosecutions (Crown) Sharman Robertson Solicitors (Offender)

File Number: SCC 100 of 2019 MURRELL CJ:

Introduction

The full facts are set out in R v Saipani [2020] ACTSC 191.
As at 4 November 2018, MC, TE and DX resided at a unit in Lyneham. MC and TE were the principal occupants of the unit. DX was staying on a temporary basis. MC was the lessee, and she was entitled to determine who entered and remained upon the premises.
KM was a friend of MC. He was a drug user. On 4 November 2018, KM was at MC’s unit. He became angry, agitated, and/or frustrated. He was concerned about making a telephone call or calls. He spoke to Mr Butkovic (a co-offender), who was with the offender and Mr Kaddour (another co-offender) at that time. He advised Mr Butkovic of the address of the Lyneham unit.
The three men agreed that they would go together to the unit to see KM for the purpose of recovering money that KM owed to one or more of them. It was part of the agreement that, if necessary, threats and/or force would be used to extract the money. It was an implied part of the agreement that they would enter the premises and would remain there for as long as was necessary to extract the money from KM. They were prepared to enter and remain regardless of whether they had KM’s consent to do so.
They were unaware that MC and TE were the principal occupants of the unit and probably did not know that anyone other than KM was at the unit.
Mr Butkovic and/or Mr Kaddour brought with them two knives, a gold taser/baton, and a blue strobe torch. I am not satisfied beyond reasonable doubt that the offender knew that the co-offenders were taking offensive weapons with them.
When they arrived, MC and DX went to the front door. They were expecting a locksmith. Immediately, one of the three men shone an intense blue strobe light onto their faces, temporarily blinding them and frightening them. DX was pushed or stepped back, causing MC to injure her ankle.
When DX recovered from the strobe light, he greeted the offender and said something to the effect of “hello, come in, let’s talk” while the men were still standing outside. The men did not have MC’s permission to enter; they entered as trespassers. Alternatively, if they entered with DX’s permission, it was permission to enter and “talk”—it was not permission to enter for the purpose of threatening and assaulting persons within the unit. Further, at least Mr Butkovic and Mr Kaddour remained in the unit as trespassers. At no point did MC give permission for them to remain within her unit, assaulting and threatening KM.
After they entered the unit, Mr Kaddour and Mr Butkovic immediately attempted to rouse KM to consciousness, yelling something like “where’s the money?”. Mr Butkovic threatened KM with the taser/baton and swung it at DX. Mr Butkovic or Mr Kaddour punched DX on the side of his head, causing significant swelling. The offender was present when the co-offenders demanded that KM give them money and when DX was assaulted.
DX then went to his bedroom, accompanied by one of the men, probably the offender. If not at that stage, then at a later stage, DX was in his bedroom with the offender. There was no overt animosity between DX and the offender.
While DX and the offender were in the bedroom, Mr Butkovic and Mr Kaddour continued to demand that KM give them money. Mr Kaddour punched KM.
The forceful and aggressive conduct by the co-offenders at the time of entry and thereafter for the purpose of extracting money constituted an aggravated burglary.
MC directed Mr Butkovic and Mr Kaddour to leave the unit. They stated that they would only leave if they took KM with them. It is quite likely that the offender and DX were still in DX’s bedroom when MC directed the other men to leave.
TE had been in her bedroom. When she went to the lounge room, Mr Butkovic blinded her with the blue strobe torch. She witnessed Mr Kaddour punching KM repeatedly. She heard shouts of “give me the money, give me the fucking money”.
As she was in the hallway between her bedroom and the lounge room, TE saw DX and the offender. The offender apologised, saying “I didn’t realise this was your house”.
MC “calmed” the situation by persuading the men to “talk about it” and “smoke some weed”. They did “calm down”, voluntarily surrendering the gold taser and, later, a knife. DX and the offender joined the others in the lounge room and those present sat around, drinking and smoking marijuana.
TE was not part of the group in the lounge room. She jumped from the bedroom window, chased by Mr Kaddour. A neighbour rang police on her behalf.
When paramedics attended, KM told them that he had been assaulted as he “owed money” to the assailants.

The offender is 27 years old. At the time of the offences, he was 25 years old.
The offender has a number of convictions for relatively minor matters, including driving offences. Relevantly, in 2011, he committed an offence of recklessly inflicting grievous bodily harm. He received a sentence of 10 months’ imprisonment, seven months to be served by periodic detention and three months to be suspended. In 2014, he breached the associated good behaviour order and was resentenced to 10 months’ imprisonment, effectively suspended after he had served three months’ imprisonment. In 2015, he committed an offence of affray for which he received a 12-month good behaviour order. I am informed that both offences were committed at night and in the company of others.
The offender’s criminal history means that he is disentitled to leniency on that account and informs sentencing purposes, including personal deterrence.
The offender was born in New Zealand and was the second of four children. His parents separated when he was young, and he relocated to Australia with his mother and siblings. Because of his mother’s substance abuse and associated neglect, he had an “unstable” upbringing, which included stints in foster care.
The nature of his upbringing meant that the offender moved between several schools. He left school in Year 9 or Year 10, but later completed Year 11. He has certificates in construction, security operation, first aid, and the responsible service of alcohol.
In recent years, the offender has been employed in the concreting industry. The offender tendered a letter from Mr Twigg, who confirmed that the offender has recently been employed as a leading hand concreter. He described the offender as hardworking, reliable, and a good manager. The offender’s job remains open.
The offender’s sister-in-law described him as a respectful, kind, and supportive person who did not usually act violently or aggressively.
In prison, the offender’s behaviour has been “positive”.
The offender told the author of the pre-sentence report that, while he had some anti-social friends, he also had pro-social friends whom he had met through gym training and playing in an Oztag team. Further, he had regular interaction with family members, aunties and a brother, who reside in Canberra.
The offender has a five-month-old son from a previous relationship, and he remains in contact with the child’s mother. He hopes to have a relationship with the child and become a positive role model for him.
The offender admits to social use of cannabis and alcohol. He stated that, on the day of the offence, he had consumed alcohol, Xanax, and cannabis. Urinalysis tests taken while he has been in custody over the last two years have revealed the presence of other illicit substances, including benzodiazepine, cocaine, and methylamphetamine. The author of the pre-sentence report noted that, having regard to these results, the offender “may have ongoing issues with substance use which he has not addressed”.
The author of the pre-sentence report assessed the offender as at a medium risk of general reoffending, primarily because of his criminal history, ongoing use of illicit substances, criminal associations, and antisocial attitudes. On the other hand, his rehabilitation is supported by the presence of employment opportunity, family support, and prosocial leisure activities.
The Crown accepted that the offender had a disadvantaged background and the effects of childhood disadvantage may not diminish with the passage of time: Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [44].

The co-offenders, Mr Butkovic and Mr Kaddour, each pleaded guilty to one count of common assault (maximum penalty two years’ imprisonment) and one count of possessing an offensive weapon with intent (maximum penalty 12 months’ imprisonment). The pleas were entered on the fourth day of the trial and they reflected a negotiated outcome.
The co-offenders were sentenced on the basis that, at about 1 AM on 5 November 2019, together with the offender, they attended the unit for the purpose of seeing KM. After they entered, there was an altercation, during which Mr Butkovic struck DX and Mr Kaddour struck KM. Mr Butkovic picked up a gold baton and Mr Kaddour picked up a black folding knife. MC told them to leave but they did not do so. TE climbed out of the bedroom window and spoke to a neighbour, who called police. In other words, each of the co-offenders was sentenced for delivering one punch and picking up one offensive weapon.
The general facts on which the offender is to be sentenced are significantly more serious. They include the repeated use of offensive weapons by the co-offenders, repeated verbal threats, and repeated punching by Mr Kaddour, and they evidence a more prolonged and violent incident than that described by Loukas-Karlsson J in her reasons for sentence of the co-offenders. Indeed, while her Honour observed that the objective seriousness of the offences for which she sentenced the co-offenders was above the lowest range, her Honour said that that was primarily because the offences had occurred in a residence.
Each of the co-offenders had spent 11 days in custody. At the time of the offences, Mr Kaddour was 24 years old and had work prospects. He was serving a partially suspended sentence for assault occasioning actual bodily harm. Mr Butkovic was 27 years old, had a criminal history for minor drug and driving matters, and had work prospects.
Each co-offender received a sentencing discount, although it is not clear to me as to how that affected the ultimate result. Mr Butkovic was sentenced to an 18-month good behaviour order for the common assault offence and a 10-month good behaviour order for possessing an offensive weapon with intent. Mr Kaddour was sentenced to a 24-month good behaviour order for the common assault offence and an 18-month good behaviour order for possessing an offensive weapon with intent.
The co-offenders were sentenced for quite different offences that carried much lower maximum available penalties. They were sentenced for discrete and relatively minor acts, and on the basis of substantially less serious general facts. On the other hand, on the facts established at the trial, the offender’s role was less than that of the co-offenders, who used weapons and committed acts of violence. The subjective circumstances of the co-offenders were similar to those of the offender, except that Mr Kaddour was on conditional liberty in the community, an aggravating feature.
In Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 (Green) at [28], the plurality referred to a passage in Wong v The Queen [2001] HCA 64; 207 CLR 584. The majority in that case stated (at [65]):

In R v Lau; R v Lutze [2019] ACTSC 353, the offenders were found guilty and convicted of aggravated burglary by joint commission and aggravated robbery by joint commission. They had entered a residence and taken an amplifier. The complainant and his partner were present at the time of the offence. The complainant confronted the offenders and there was a struggle for the amplifier, during which Mr Lutze held a screwdriver to the complainant’s side. Burns J characterised the offence of aggravated burglary as in the lower range of objective seriousness. Mr Lau had a more extensive criminal history than Mr Lutze. For the offence of aggravated burglary, Mr Lutze was sentenced to two years’ imprisonment and Mr Lau was sentenced to two years and six months’ imprisonment: see R v Lau [2020] ACTSC 120, R v Lutze [2020] ACTSC 121.
In R v Keir [2016] ACTSC 266, after a trial by jury, Refshauge J sentenced the offender to 18 months’ imprisonment for an offence of aggravated burglary. The offender and two co-offenders forced entry to the complainant’s residence to question him about a debt. A co-offender threatened the complainant with an axe and made demands. There was no actual violence. The offender had a long but relatively minor criminal history.
In R v Hanrahan [2020] ACTSC 10, the offender and three co-offenders broke into the complainant’s residence and demanded money allegedly owed because of a drug debt. There was a scuffle and the complainant sustained minor injuries. The offender had a minor criminal history and was sentenced to 18 months’ imprisonment, reduced from 24 months’ imprisonment for the plea of guilty.
Each of the above cases involved facts of less objective seriousness than those in the present case.
I am aware of the significant limitations of sentencing statistics. The fact that the subject offence was an offence of joint commission creates a further difficulty in relation to the relevance of sentencing statistics. However, I note that between July 2012 and February 2019, offences of aggravated burglary frequently resulted in sentences of between 18 months’ and three years and six months’ imprisonment, consistent with the sentences referred to above. In most cases, the sentence followed a plea of guilty and presumably reflected a sentencing discount.