R v Waqabaca [2020] NSWDC 448

District Court New South Wales

Medium Neutral Citation: R v Waqabaca [2020] NSWDC 448 Hearing dates: 20 July 2020 Date of orders: 12 August 2020 Decision date: 12 August 2020 Jurisdiction: Criminal Before: M Adams QC ADCJ Decision: Aggregate head sentence 16 months imprisonment and the non-parole period 12 months Catchwords: CRIME - intent to commit an indictable offence namely assault - intentionally damage the property of the tenant by means of fire Legislation Cited: Crimes Act 1900 Crimes (Domestic and Personal Violence) Act 2007 Crimes (Sentencing Procedure) Act 1999 Cases Cited: R v Smith and Bardini (NSWCCA, 11 September 1987, unreported) R v Tillott (1991) 53 A Crim R 46 Category: Sentence Parties: Director of Public Prosecutions (NSW) Suka Waqabaca (Offender) Representation: Counsel: S Ormanhales of Counsel (Offender)

Crown: S Choi, Solicitor Advocate

Solicitors: Director of Public Prosecutions PW & Associates Solicitors (Offender) File Number(s): 2019/00300507

Judgment

Introduction 1. Arising out of circumstances that occurred in the late afternoon of 25 September 2009 the offender Mr Suka Waqabaca was charged to the following effect – 1. on 25 September 2019 at Campsie in the State of New South Wales he was armed with a weapon, namely a timber baseball bat, with intent to commit an indictable offence namely assault, contrary to s114(1)(a) of the Crimes Act 1900 ; and 2. on 25 September 2019 at Campsie in the State of New South Wales he did break and enter the subdivided granny flat unit of the victim [unnamed for privacy reasons] and then did commit a serious indictable offence, namely intentionally damage the property of the tenant by means of fire, contrary to s112(1)(a) of the Crimes Act 1900. 1. The first charge carries a maximum term of imprisonment of 7 years. Section 115 of the Crimes Act 1900 provides that an offender who has already "been convicted of any indictable offence [and] afterwards commits any offence mentioned in section 114, shall be liable to imprisonment for ten years". However, it has been held that this creates a distinct offence and the prior conviction must be averred in the charge: R v Smith and Bardini (NSWCCA, 11 September 1987, unreported; and see R v Tillott (1991) 53 A Crim R 46). As detailed below, the offender was convicted of an indictable offence in 2006 and again in 2015. However the element of a prior conviction was omitted from the charge to which he pleaded guilty and, accordingly, he is only subject to the initial maximum penalty of 7 years imprisonment. The second charge carries a maximum term of imprisonment of 14 years. Neither carries a standard non-parole period. 2. The offender pleaded guilty to these offences at the earliest opportunity. It is common ground that he is entitled to the benefit of a 25% deduction in the sentences which would otherwise be imposed: Crimes (Sentencing Procedure) Act 1999, s 25D. 3. The offender also asked, under s 33 of the Crimes (Sentencing Procedure) Act 1999 that an offence of stalk/intimidate under s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 be taken into account. I am satisfied that it is appropriate to do so. This offence carries a maximum penalty of imprisonment for 5 years or 50 penalty units, or both.