R v Nono [2011] NSWDC 141

District Court New South Wales

Medium Neutral Citation: R v Nono [2011] NSWDC 141 Hearing dates: 29 July 2011 Decision date: 29 July 2011 Jurisdiction: Criminal Before: Gibson DCJ Decision: The offender is convicted of the offence. The offender is sentenced to five years imprisonment. A non-parole period of two years and three months commencing on 4 February 2010 is set. The nonparole period of two years and three months will expire on 3 May 2012 when the offender is released to parole on supervision, such supervision to continue until 3 February 2015. Catchwords: CRIMINAL LAW - offender convicted after jury trial - sentence - robbery while armed with offensive weapon Legislation Cited: Crimes Act 1900 (NSW), s 97(1) Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A Cases Cited: R v Henry (1999) 46 NSWLR 346 R v Ponfield (1999) 48 NSWLR 327 Texts Cited: - Category: Sentence Parties: Mandella Nono Representation: Mr Robinson (Crown) Mr Segal - File Number(s): 2009/221176 Publication restriction: None

Judgment 1The offender pleaded not guilty to one count pursuant to s 97(1) Crimes Act 1900 (NSW) in that on 4 October 2009 at Quakers Hill, New South Wales, being armed with an offensive weapon, a knife, he robbed Hajid Singh Chemma of a sum of cash, the property of Mr Singh and his employer Domino's Pizza for which the maximum penalty is twenty years and to which there is no standard non-parole period. 2The offender was arraigned on 10 June 2010. On 18 March 2011 after a nine-day trial a jury convicted the offender. 3The relevant facts may briefly be stated. Some time after 11.00pm on 3 October the offender and a minor were attending a party at premises in Lovegrove Drive, Quakers Hill. A telephone call was made for delivery of nine pizzas at a cost $103.55 to 110 Lovegrove Drive which was the house across the road from the party. At about midnight the pizza delivery driver arrived in Lovegrove Drive. Two men, one black and one white, approached. After the pizzas were handed over, the offender told the pizza delivery driver, "Give me your money" and held up a large knife he had brought with him. The driver handed over the blue pencil case containing about $460 and the men took the pizzas and a bottle of Coca Cola. The offender told the driver to leave, threatening that he knew where the driver worked and warning that what would happen if he contacted police. 4Police were notified immediately about the robbery. A police car sent to the vicinity sent a radio message at 12.35am that two men fitting the description had been seen in the canal behind Lovegrove Drive. Shortly after that, the offender and his companion were stopped and searched. The victim's blue pencil case was found when the offender was searched. The offender was arrested and conveyed to the police station, as was his companion. Police also attended the Lovegrove Drive premises where the offender and his companion had been attending the party and found and photographed a number of items including a large knife and a small sum of money. 5The offender who is now aged twenty-one years has a short criminal history which is set out in exhibit A and includes offences of a minor nature. 6I now turn to consideration of the subjective circumstances of the offender, all of which have been taken into account and which are contained in a pre-sentence report dated 29 July 2011 and a report from Duffy Robilliard, psychologist dated 18 July 2011. 7The offender was born on 18 March 1990 and he is now twenty-one years of age. The offender is the second eldest of seven children and was born in the Sudan. Up until he was about four he and his family lived in the Sudan in conditions of the utmost hardship. The Probation and Parole Service presentence report perceptively notes that he would have witnessed events totally unknown to the Australian way of life. The offender regularly witnessed violence and atrocities and was deprived of food and shelter, in particular during a period of two weeks when he had to walk with his family to Kenya to a refuge where he remained for another five years before he and his family were able to emigrate to New Zealand. 8The offender initially showed promise, particularly in relation to sport, but began drinking at the age of twelve and taking drugs, first marijuana and then amphetamines, at the age of fifteen. The offender has told the Probation and Parole officer that the abuse of drugs and alcohol resulted in his criminal behaviour. He has undergone detoxification since his entry into custody on April 2010. 9The offender comes from a loving and supporting family and I note that his father and three of his siblings are in court. The Probation and Parole report notes that the family has offered to assist in any way possible as they have noticed a positive change in his attitude since being incarcerated. There are indications in the Probation Service report of a change in his attitude and having regard to those changes, his family support and his detoxification, his prospects of rehabilitation are good, particularly if, with the appropriate assistance and supervision on release, he is able to maintain the motivation to overcome his drug and alcohol problems. I note that he has been unable to put his name down for programs in gaol because he has been on remand. 10The present offence is objectively serious. For offences of this type general deterrence and punishment are most important. Given the offender's prior criminal history, personal deterrence is also of importance, particularly having regard to statements he made to the Probation and Parole officer concerning the offence as set out in that report in relation to a denial of the police facts. 11Having regard to the objective seriousness of the present offence there is no option but to impose on the offender a full time custodial sentence. I note that no aggravating factors have been drawn to my attention. There was no violence, although there was a serious threat of future violence and a knife was used in the commission of the offence. This is an offence which having regard to the factors that have been drawn to my attention in the course of addresses is one which would fall towards the bottom of the range in terms of seriousness. 12Although the offender is not to be penalised for not pleading guilty he is not thereby entitled to any discount on sentence that would flow from such plea. 13In regard to whether a finding of special circumstances should be made, as indicated, I have found that there are special circumstances warranting the adjustment of the non-parole period, having regard to the benefits that will flow to the offender from an extended period of supervision and, having particular regard to the contents of their Probation and Parole pre-sentence report recommendations concerning his drug and alcohol problems and his need for treatment of these and also by reason of his youth. 14I formally note there is no issue raised in relation to parity concerning the co-offender's sentence. 15In determining the sentence I have had regard to and taken into account the guidelines enunciated in R v Ponfield (1999) 48 NSWLR 327 and also in relation to the factors set out in R v Henry (1999) 46 NSWLR 346 at [162]. In addition to the matters to which specific reference has been made I have also taken into account in respect of the offence all of the matters referred to in s 21A Crimes (Sentencing Procedure) Act 1999 (NSW). 16The offender has spent two periods in custody solely referable to this offence. These are for the periods 4 October 2009 to 12 December 2009, a period of two months and eight days and from 13 April 2010 to date, a period of one year three months and seventeen days, making a total of one year five months and twenty-five days. In accordance with these dates and the discussions I have had with counsel about the appropriate deduction the effective total sentence to be imposed will commence on 4 February 2010 to take into account both those periods in full. 17The offender is convicted of the offence. The offender is sentenced to five years imprisonment. A non-parole period of two years and three months commencing on 4 February 2010 is set. The nonparole period of two years and three months will expire on 3 May 2012 when the offender is released to parole on supervision, such supervision to continue until 3 February 2015. ****** 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: 26 September 2011