District Court New South Wales Medium Neutral Citation: R v Fuimaono [2023] NSWDC 41 Hearing dates: 2 February 2023 Date of orders: 3 March 2023 Decision date: 03 March 2023 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Fulltime imprisonment. For orders see [66]. Catchwords: CRIME – sentence – assault with intent to rob – custody of knife in public place – Drug Treatment Correctional Centre Program recommendation. Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Drug Court Act 1998 Summary Offences Act 1988 Cases Cited: 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] (1998) 164 CLR 465 Category: Sentence Parties: Ethan Fuimaono (Offender) Director of Public Prosecutions (Crown) Representation: Solicitors: Ms T Johnson (Offender) Mr J Rafeeq (Crown) File Number(s): 2022/117695 Publication restriction: Nil. REMARKS ON SENTENCE 1. The offender who was born on 28 November 1998 is being sentenced for two offences to which he has pleaded guilty, namely:- 1. Assault with intent to rob pursuant to s94(a) of the Crimes Act 1900; and 2. Custody of knife in a public place pursuant to s11C(1) of the Summary Offences Act 1988. 1. The offences occurred on 25 April 2022 and the offender has been in custody since that date. He has previously been sentenced by way of an aggregate sentence for two offences of aggravated robbery and inflict actual bodily harm and robbery armed with offensive weapon for which he was sentenced to a term of imprisonment of 4 years 6 months from 15 February 2019 with a non-parole period of three years which had expired on 14 February 2022. As a result of the commission of the index offences his parole was revoked as and from 25 April 2022 and that sentence expires on 14 August 2023. 2. The maximum penalty prescribed for the offence pursuant to s94(a) of the Crimes Act 1900 is 14 years imprisonment and the maximum penalty prescribed for the offence pursuant to s11C(1) of the Summary Offences Act 1988 is 2 years imprisonment and/or 20 penalty units. There is no standard non-parole period prescribed for either offence. The sentence hearing 1. The sentence hearing took place on 2 February 2023. The Crown sentence summary bundle became Exhibit A. It included a summary of agreed facts which may be summarised as follows. 2. The offence occurred on 25 April 2022 at 7:58pm when the offender entered the Mortdale Hotel and approached the bar. A hotel employee, hereinafter referred to as the victim, was standing behind the bar and the offender approached her and presented her with a note which read:- "B4 I JUMP OVER THE COUNTER, GIVE ME MONEY OR I SHOOT EVERYONE?" 1. The victim stepped backwards, and the offender then jumped over the counter and ran towards her. At the same time a knife fell out of the offender's pocket onto the floor of the inside bar area. The offender grabbed the victim by her hair and pulled her towards him. Approximately five hotel patrons ran towards the bar area. The offender let go of the victim's hair and she ran into the public area of the bar. The offender was apprehended and wrestled to the ground by the patrons referred to and held until police arrived. The offender was arrested and police seized the knife which is the subject of the second charge. 2. Exhibit A contained the offender's criminal antecedents. Significantly, on 14 October 2017 he had been sentenced for an offence of robbery armed with offensive weapon which occurred when he was 18 years of age to a period of imprisonment of 2 years with a non-parole period of 12 months commencing on 16 February 2017. 3. On 27 July 2019 the offender was sentenced to the aggregate sentence referred to above for which he was on parole at the time of the index offending. Those offences occurred on 28 January 2019. Thus, the offender who is now aged 24 has spent most of his young adult life in custody. 4. Exhibit A included the offender's custodial records which showed a number of institutional breaches relating to both drugs and violence. 5. Exhibit A also included a breach of parole report under the hand of Ms C Ribbons dated 2 May 2022. The author noted that since his release from custody on 14 February 2022 the offender had been largely compliant with supervision. He had referred himself to WHOS for drug rehabilitation and had commenced weekly counselling. At the time he was on monthly opioid substitution injections but failed to have his second monthly injection post release. At that time he advised his intention was to "reduce the dosage" so that he could commence using steroids. The author further noted that prior to his arrest his mother had reported increasingly erratic and irritable behaviours. 6. Exhibit A also included an agreed statement of facts related to the offences for which the offender was sentenced in 2019, a Sentencing Assessment Report in relation to that sentencing dated 2 July 2019 together with a report of Dr M Milic, psychologist dated 22 March 2017 relied on by the offender in those proceedings. The offender's evidence 1. Exhibit 1 was the CCTV footage of the incident inside the Mortdale Hotel which was played in open court to demonstrate the short duration and nature of the offending. 2. Exhibit 2 was a photograph of the short-bladed knife the subject of the second charge. 3. Exhibit 3 was a report of Anita Duffy, psychologist dated 19 January 2023. She assessed the offender via AVL for two hours on 16 January 2023. She described him as being restless throughout that session, showing difficulty in verbal expression and comprehension with his conversation reflecting a superficial level of self-examination and insight into the nature of his offending behaviour. 4. Ms Duffy set out the family history. He had completed Year 10 at school and then commenced a pre-apprenticeship course at TAFE. He commenced an apprenticeship as a plumber and had completed three years of his trade course before going into custody in 2017. Following his release from custody in February 2022 he lived with his mother and obtained employment. However, following an argument with his family over money owed to him he resumed drinking, drugs and gambling until his arrest for the index offending on 25 April 2022. 5. The offender reported drinking spirits from the age of 15 to 16 and smoking from 17. He progressed to daily consumption of ice prior to his arrest in 2017. He also smoked and later injected heroin and developed a habit. 6. The offender reported playing poker machines at age 16 or 17 and developing a gambling addiction. He also reported being on the Buvidal injection program for a period of two years but failed to attend for his second monthly injection following his release on parole. He had resumed monthly injections since his return to custody. The offender attributed his recidivism to his addiction to substances and he agreed he needed more intensive rehabilitation programs both whilst in custody and in the community. 7. The offender reported that on the day of the offence he had consumed alcohol, ice, MDMA and heroin. Of the offence, he said, he "was not thinking as drugs make you do stupid things", and "I don't know what I was thinking" in robbing the hotel. He further said, "of course the victim would have been scared" but at the time he needed money. He felt remorse for what he had done. 8. Following assessment the author opined that the offender satisfied the diagnostic criteria for:- 1. Stimulus disorder (amphetamine type), moderate, in remission in a controlled environment; 2. Alcohol use disorder, moderate, in remission in a controlled environment; and 3. Gambling disorder, moderate, in remission in a controlled environment. 1. The offender reported being devastated as a teenager when his parents separated and becoming associated with antisocial peers at a vulnerable period in his life. 2. The author recommended a number of treatment programs including assessment for eligibility for the Compulsory Drug Treatment Correctional Centre, a drug court diversion program of 18 months duration. 3. The author opined that the detrimental effects of incarceration, including institutionalisation in this case need to be balanced by an active rehabilitation program commenced well in advance of his next release. A comprehensive rehabilitation program is needed to address underlying emotional and interpersonal issues leading to substance abuse and promoting insight and self-awareness. 4. Exhibit 4 was a letter from the offender's mother Ms J Fresco. She confirmed her son's addiction to prohibited drugs including ice and marijuana. He had expressed his remorse to her and was very sorry for what he has done. The offender had also admitted that he had a drug problem and was willing and eager to change his life by attending rehabilitation. 5. Ms Fresco had contacted a number of rehabilitation facilities on behalf of her son and felt that he had become institutionalised and needed serious fulltime rehabilitation. She described him as a "kind-hearted person, hard worker and a great big brother to his younger siblings and very close to his older sister". She also attached a timeline of the offender's achievements following his release from custody on parole prior to the index offending. Also attached was a letter from WHOS dated 28 April 2022 confirming that during his time at the service the offender had demonstrated a willingness to look at the problems associated with his drug dependency. The Crown's submissions 1. The Crown relied on a thorough and detailed written outline of submissions which set out well established sentencing principles which are not in issue. The Crown submitted that having regard to the nature of the offending, and characterising the offender's actions towards the victim as "startling, forceful and aggressive resulting in the victim being fearful of further assault", that the offending fell towards the mid-range of objective seriousness for an offence pursuant to s94(a) of the Crimes Act 1900. 2. The Crown submitted that the court could take into account the following aggravating factors pursuant to s21A(2) of the Crimes (Sentencing Procedure) Act 1999 ("CSPA"):- * (2)(d) The offender has a record of previous convictions. * (2)(j) The offence was committed whilst the offender was on conditional liberty, namely, parole. 1. The Crown submitted that a mitigating factor on sentence pursuant to s21A(3) of the CSPA was the offender's plea of guilty. The application of s21A(5AA) of the CSPA meant that the offender's self-induced intoxication was not to be taken into account as a mitigating factor. 2. The fact that there was no Victim Impact Statement relied on by the Crown did not justify an inference that there was no adverse effect on the victim, relying on R v Heikkinen [2006] NSWCCA 50 at [40]. 3. The Crown conceded that the offender was entitled to a 25% utilitarian discount on sentence for his early plea of guilty and submitted it would be appropriate to backdate the commencement of any sentence to 25 April 2022 or shortly thereafter. The Crown submitted that the only appropriate sentence was one of fulltime custody. 4. In his oral submissions the Crown confirmed the Crown's assessment of the objective seriousness of the offending fell towards the mid-range of an offence pursuant to s94(a). The fact that the offending occurred inside a hotel premises lead to an aggravating factor that the victim was a vulnerable worker. The Crown submitted that it was a brazen offence with limited planning given that it occurred on Anzac Day in front of other patrons. Whilst it was confronting to the victim, nothing was taken by the offender who was apprehended by other patrons. In relation to the question of institutionalisation, the Crown referred the court to Decision Restricted [2017] NSWCCA 60 at [109] where Hoeben CJ at CL stated that it was because of the offender's own conduct that he had spent a considerable amount of time in prison with relatively short periods of living in the community. Notwithstanding the risk of institutionalisation his Honour stated that it was an obligation "to impose a sentence which was appropriate to the seriousness of the offending and which was otherwise consistent with proper sentencing principles". 5. The Crown submitted that the s5 threshold had been crossed and that a 25% utilitarian discount on sentence was appropriate for the offender's early plea of guilty. The Crown also agreed that the commencement date for any sentence should be 25 April 2022. 6. The Crown submitted that the offender's criminal history did not assist the offender given his prior convictions and prison sentences for similar offending. 7. Finally, the Crown submitted the court would exercise caution in accepting what the offender had reported to the psychologist about his rehabilitation given his failure to rehabilitate on prior occasions. His prospects of rehabilitation were therefore guarded and his risk of recidivism were dependant on his risk of relapse into gambling, drug and alcohol abuse. The submissions on behalf of the offender 1. The solicitor for the offender also relied on a thorough and detailed written outline of submissions setting out uncontroversial sentencing principles and conceding that the s5 threshold had been crossed. 2. In assessing the objective seriousness of the offending it was submitted that the court would take into account the following factors:- 1. The offences occurred in the evening, at about 8pm, when the venue was staffed and populated with a large number of patrons sitting at several tables within the area celebrating Anzac Day. 2. The offender entered the hotel and walked to the bar, stopping in front of the victim. There was one other female bar staff who was approximately two metres away from the offender. 3. The offender handed the victim a note saying "B4 I jump over the counter, give me money or I shoot everyone?". The victim saw the note and stepped backwards. She believed the note said, "I need". 4. The offender then jumped over the counter and ran towards the victim. As he did this, a knife fell out of his pocket and onto the floor of the inside bar area. Whilst behind the bar, the offender grabbed the victim's hair and pulled her towards him. 5. About five patrons of the hotel observed the offender's actions and ran towards him. Upon seeing this, the offender let go of the victim's hair. The victim and the other bar staff ran towards the exit and out into the main area of the hotel. 6. When the offender exited the bar area, the patrons wrestled him to the ground and was restrained with force until police arrived. The restraint of the offender involved a significant and sustained use of force by the patrons that went on for over five minutes. 7. When police arrived, the offender was arrested and seized the knife that had been in his custody. 8. The incident was captured on CCTV and the offender's effort to conceal his appearance was limited to a grey hoodie, a hat with the hood of the jumper pulled over it and a Covid 19 face surgical mask. It is submitted that the extent of disguise is unsophisticated. 9. It is acknowledged that the offender must have planned to target the hotel, given he had drafted the note prior to handing it over to the bar staff. The possession of a knife is not in of itself evidence of planning to commit a robbery when he entered the hotel given it was not used in the execution of the offence. 10. The offender's use of physical force in pulling her hair to cause the victim to comply with his demands would have caused pain and panic. It is acknowledged that the victim experienced fear as a result of the offender's actions. 1. Having regard to those matters it was submitted that the objective seriousness of the offence fell towards the lower end of the range for an offence pursuant to s94(a) of the Crimes Act 1900. 2. The solicitor for the offender conceded the aggravating features relied on by the Crown and factors set out above, but advocated the following mitigating features pursuant to s21A(3) of the CSPA:- 1. S21A(3)(a) the injury, emotional harm, loss or damage caused by the offence was not substantial; 2. S21A(3)(h) the offender has good prosects of rehabilitation, whether by reason of his age or otherwise; 3. S21A(3)(i) the offender had shown remorse; and 4. S21A(3)(k) the offender had entered a plea of guilty. 1. The offender relied on the report of a Ms Duffy in what were described as her "diagnoses" set out above. He relied on the family and educational history set out in Ms Duffy's report together with his exposure to alcohol and prohibited drugs from the age of 16. He also relied on Ms Duffy's opinion that his level of intoxication on the day of the offending "likely impaired his capacity for sound judgment, decision making and consequential thinking". 2. The offender acknowledged that s21A(5AA) prohibited the court from having regard to self-induced intoxication as a mitigating factor however it was submitted that the section did not alter common law authority that intoxication has been a relevant factor in determining the "degree of deliberation involved in the offender's breach of the law" referring to R v Coleman (1990) 47 A Crim R 307 per Hunt J at 327. It was submitted there was a degree of impulsivity and poor exercise of judgment at the time of the offending given that it was a busy public holiday. 3. The offender was 23 years of age at the time of the offending and it was submitted that was the upper range of a young offender. Given that he had spent a significant period of time incarcerated since turning 18 his scope for the development of his emotional maturity had been impeded and it was submitted that his youth would permit a greater emphasis being placed on his rehabilitation and the avoidance of his institutionalisation referring to BP v R (2010) A Crim R 379; [2010] NSWCCA 159 at [5]. 4. On the question of totality and accumulation in sentencing it was submitted that the offence of being in custody of a knife in a public place was minor given the insignificance of it to the commission of the primary offence. It was submitted that in applying principles of totality the court would not be in error in backdating the sentence to the time of the offender's arrest. 5. The offender conceded that the court would be guarded as to his prospects of rehabilitation, given his recidivism. He had however reported motivation to address the addictions which underpin the index offending. It was therefore submitted that the court should refer the offender to be assessed for his suitability for the Compulsory Drug Treatment Correctional Centre Program. He had not been given this opportunity when previously sentenced in 2019 and the program would facilitate his access to psychological counselling, engagement in intensive substance rehabilitation and management of his transition and reintegration into the community. 6. The offender submitted that his need for continuing rehabilitation and the risk of institutionalisation justified a finding of special circumstances pursuant to s44 of the CSPA so as to amend the statutory ratio between head sentence and non-parole period. 7. In her oral submissions the solicitor for the offender conceded, appropriately, in my view, that the victim who was working as a bar attendant in the hotel premises was a vulnerable person at the time of the offence. It was submitted that the CCTV footage illustrated that the offence was both brazen and quick. It commenced with a passive presentation by the offender, without the use of a weapon. Further the nature of the assault on the victim, namely, pulling her hair, was towards the lower end of objective seriousness. 8. Notwithstanding the offender's prior similar offending, the index offending was a "de-escalation" from that type of violent offence. 9. It was submitted that the jail environment, in which the offender had been since 2017 was not helping him rehabilitate. He now was motivated to address his drug and alcohol dependencies and his mother's statement in Exhibit 4 demonstrated that he had support in the community. 10. The solicitor for the offender rehearsed her submissions in relation to the institutionalisation of the offender, his guarded prospects of rehabilitation, the impact of his intoxication leading to impaired judgment and the index offending together with his demonstrated remorse. She emphasised that the offender was still a young man and his custodial record had prevented him from maturing. 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". 1. In assessing the objective seriousness of the offending I take into account that there was some planning involved by preparation of the note handed to the victim and the choice of hotel. However, it was unsophisticated offending carried out on Anzac Day in hotel premises where there were patrons present. The offender used physical force towards the victim by pulling her hair which no doubt caused pain and panic in what was no doubt a frightening experience for her. The offending however was of short duration as the offender was apprehended quickly by the patrons who were present. Having regard to all of the circumstances of the offending I find it fell below the mid-range for an offence pursuant to s94(a) of the Crimes Act 1900 but in the middle of the low range. It still constituted serious offending. 2. I find it was an aggravating factor that the victim was a vulnerable person by way of her occupation working in the hotel pursuant to s21A(2)(a) of the CSPA. 3. It is a further aggravating factor that the offender had a record of previous convictions for similar offending for which he had been sentenced to imprisonment on two occasions pursuant to s21A(2)(d) of the CSPA. Whilst the nature of the offending here may have been less objectively serious than on a previous occasion, I do not accept the submission made on behalf of the offender that is represented a "de-escalation" of his offending conduct. I have regard to what the High Court said in Veen v R [No. 2] (1998) 164 CLR 465 at 477 where the plurality said: "The antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. The antecedent criminal history is relevant, however, to show that the incident offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience to the law. In that case retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted." 1. The offending here fell into the latter category and demonstrated a continuing disobedience of the law. 2. It was a further aggravating factor pursuant to s21A(2)(j) that the offender was on parole for similar offending and had been on conditional liberty for just over 2 months. 3. I take into account the following mitigating factors pursuant to s21A(3). First, the injury, emotional harm, loss or damage caused by the offence was not substantial (s21A(3)(a)). However it was a frightening experience for the victim who was vulnerable, and no inference could be drawn that there was no adverse impact on her. 4. The offender has entered a plea of guilty at an early stage and is entitled to a 25% utilitarian discount on sentence (s21A(3)(k)). I further note that the offender has expressed remorse to his mother and Ms Duffy for his offending, and I take that into account. 5. Pursuant to s21A(5AA) the offender's self-induced intoxication by his consumption of alcohol and a cocktail of illicit drugs on the day of the offence is not to be taken into account as a mitigating factor. I accept however the submission made on behalf of the offender that it explains the degree of impulsivity and poor exercise of judgment in committing what was characterised as a "brazen" offence in hotel premises on a busy public holiday. 6. General deterrence is important in sentencing for offences pursuant to s94(a) of the Crimes Act 1900. Parliament has prescribed a lengthy term of imprisonment as a maximum penalty for the offence which indicates the serious nature of the offending, and a clear message must be sent to likeminded members of the public that the courts will impose condign punishment in appropriate cases. Specific deterrence is also important here particularly given this offender's criminal history. He must understand that if he continues to offend in this way the courts will impose increasingly lengthy sentences of imprisonment on him. 7. It is clear that the offender who is on an opioid replacement program is in need of intensive rehabilitation for his drug, alcohol and gambling addictions. His record is evidence of a complete failure to rehabilitate on previous occasions and his repetition of serious criminal offending following his relapse into drug and alcohol abuse mean not only that his prospects of rehabilitation could only be considered as guarded but that his risk of recidivism is entirely dependent on his rehabilitation and adopting relapse prevention strategies. 8. I have taken into account the fact that the offender was 23 years of age at the time of the offending and has spent most of his early adult life in custody. I accept that he has not as a result matured emotionally and if he continued to offend would be at risk of institutionalisation. However, he had made some positive steps when first released on parole, particularly in obtaining employment, and I find that his youth and drug and alcohol issues do diminish his moral culpability for the offending to a certain extent. 9. I make a finding of special circumstances pursuant to s44(2) of the CSPA based on the offender's youth, his need for intensive rehabilitation and because of the onerous conditions of incarceration brought about by the COVID-19 Pandemic. I therefore intend to vary the ratio between head sentence and non-parole period. 10. I have taken into account the maximum penalty of 14 years imprisonment for the offence pursuant to s94(a) as a guidepost in the sentencing process. I have also taken into account the maximum penalty of 2 years imprisonment and/or 20 penalty units in respect of the offence pursuant to s11C(1) of the Summary Offences Act 1988. 11. I find that the threshold in s5 of the CSPA has been crossed and no penalty other than imprisonment is warranted in all of the circumstances. 12. I intend to sentence the offender to a sentence of 4 years and 6 months imprisonment in respect of the offence pursuant to s94(a) of the Crimes Act 1900. Notwithstanding that he is at risk of institutionalisation as a young man, the objective seriousness of the offending, together with his prior offending for similar offences on two occasions warrant this sentence. However, having found special circumstances I intend to impose a non-parole period of 2 years and 6 months to commence on 25 April 2022. 13. I recommend that the offender be referred to the Drug Court for assessment for his suitability for the Compulsory Drug Treatment Correctional Centre Program. He has not had this opportunity when previously sentenced and I find that his participation would facilitate his rehabilitation and management of his transition and reintegration into the community. 14. I intend to sentence the offender to a term of imprisonment of 6 months in respect of the offence pursuant to s11C(1) of the Summary Offences Act 1988, to be served concurrently with the above sentence. Orders 1. I order as follows: 1. You are convicted of the offence of assault with intent to rob pursuant to s94(a) of the Crimes Act 1900. 2. I impose a non-parole period of 2 years and 6 months to commence on 25 April 2022 and terminate on 24 October 2024 3. The balance of term will be a period of 2 years from 25 October 2024 to 24 October 2026. 4. You are convicted of the offence of custody of knife in a public place pursuant to s11C(1) of the Summary Offences Act 1988. 5. I sentence you to a fixed term of imprisonment of 6 months to commence on 25 April 2022 and to be served concurrently with the above sentence. 6. I direct the registrar to refer the file to the Drug Court and recommend that you be assessed for suitability for participation in the Compulsory Drug Treatment Correctional Centre Program pursuant to s18B(2) of the Drug Court Act 1998. ********** 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: 03 March 2023