R v Papara [2014] NSWDC 120

District Court New South Wales

Medium Neutral Citation: R v Papara [2014] NSWDC 120 Hearing dates: 16 May 2014. Decision date: 16 May 2014 Before: Berman SC DCJ Decision: Referred for assessment as to his suitability to serve his sentence by way of an Intensive Corrections Order Catchwords: CRIMINAL LAW - Sentence - Aggravated break enter and commit affray in company - Repeat offender - Drunken violence Category: Sentence Parties: The Crown Caine Papara Representation: Solicitors: Director of Public Prosecutions - Crown Legal Aid Commission - The offender File Number(s): 2013/241514

SENTENCE 1HIS HONOUR: Today I am sentencing for an offence where a young man, whilst drunk, has committed an act of violence. 2How many times do the courts begin their remarks on sentence with those words? The community is rightfully sick and tired of conduct such as I am about to describe. What makes things worse in the matter of Caine Papara who appears for sentence, is that he has done this repeatedly. He does not seem to have learnt the connection between committing criminal offences and drinking. Hopefully the sentence I am about to impose upon him will make him realise what he has been doing wrong. 3After he had finished his HSC he went to schoolies up in Queensland. Whilst drunk he assaulted a police officer by pushing him in the chest. No conviction was recorded, presumably because of his age and intoxication, but he was fined $700. 4A short time later he committed the offence for which I must sentence him, an event of aggravated break enter and commit affray in company. 5I will get back to the circumstances of that in a little while, but after committing that offence, and before his arrest for it, he committed two other offences whilst drunk, an offence of affray and an offence of being armed with intent to commit an indictable offence, (and his stepfather told me in evidence today that the weapon with which he was armed was a knife). 6So in between the matter in Queensland and the matter for which he was dealt with in Waverley Local Court, receiving s 9 bonds, he committed this offence. 7It was the night of the Mardi Gras 2 March 2013. He was out with a number of his friends, in particular his girlfriend at the time Crystal Hartley. They went to a convenience store. Matters proceeded without incident until, unbeknown to the offender, one of the people he was with attempted to steal a bottle of Coca Cola. The operators of the convenience store locked the doors in order to prevent the people inside leaving. The offender was outside with some of his friends. A melee broke out inside the store between the offender's girlfriend, the female who had attempted to steal the Coke bottle and the people working in the store. The offender responded to this by attempting to break into the store to assist his then girlfriend. He and his friends were pushing on the main entrance door, kicking at it and reefing at it. Eventually they managed to break the door open and the offender and his three female companions entered the store. What I have described is bad enough, but what happened afterwards is disgraceful. 8Upon entering the store the offender immediately approached one of the workers, a Mr Zhang. He cornered him against the ice cream machine near the front of the store and punched him at least nine times in quick succession using his right hand. He was aiming these punches at the head and torso of Mr Zhang while Mr Zhang was crouched on the ground with his arms raised up to protect his head. Did Mr Papara then stop? No he did not. He then turned his attention to one of the female employees. He approached her and pushed her in the chest area, causing her to stumble backwards and collide with a wall a number of steps behind her. His parting shot was to verbally abuse the people inside the store until he left the store, the last of the people to leave. He ran away. 9It was not for some months that he was arrested. Police discovered his fingerprints and were able to get a DNA sample, but they had nothing to match it with until Mr Papara committed the offences that I have earlier described, later on that year. 10The offence of aggravated break enter and commit affray in company has a maximum penalty of 20 years imprisonment. It has a standard non-parole period of five years. Those matters are enough to demonstrate the seriousness with which Parliament said such offences should be treated. I suspect Mr Papara does not realise the severity of his misconduct and he should be under no misapprehension the legislation says that an important guidepost in determining his sentence is a standard non-parole period of five years imprisonment. I will take both the head sentence and the standard non-parole period into account in determining this sentence in this case. My reasons for not imposing a standard non-parole period appear in these remarks on sentence. 11As well, there is a the well-known authority which says sentences other than of imprisonment for offences carrying standard non-parole periods should be uncommon. The starting point thus in this case is that Mr Papara should go to gaol given what he has done. 12He was 18, just 18 at the time of this offence and so not a man of the maturity that an adult might have. Until he left school his stepfather, who gave evidence today, described him as a good kid, someone who his mother and stepfather were entitled to be proud of. The attitude to alcohol displayed by his mother and stepfather appears to have been very sensible, no alcohol was served at home and certainly this was not a household where parents encouraged drinking. Despite this, and somewhat to his stepfather's surprise, Mr Papara told the author of the pre-sentence report that he had been binge drinking on weekends since he was 15 years of age. His stepfather knew nothing of this until he read it in the pre-sentence report. So although his offending, the commission of criminal offences, has been recent his misbehaviour has not been. 13Mr Leary did not suggest that the offender has expressed his remorse for his wrongdoing. As his stepfather explained Mr Papara said that he was embarrassed and he apologised to his parents. That is very different for being sorry for having done the wrong thing. I heard no expression of remorse in those terms in these proceedings. 14Perhaps the most important thing that can be said in Mr Papara's favour is that he has apparently changed his attitude in more recent times. He is no longer associating with the people he was associating with when he committed this offence. He has made new friends. He has started working part time with his stepfather. There is thus hope for the offender's future, but I would not want anyone to think that Mr Papara was out of the woods yet. That he has embarked on a series of serious offences, including one carrying a maximum penalty of 20 years imprisonment, suggests that there is a considerable way to go before it can be said that he is unlikely to commit further offences in the future. 15Mr Leary submitted that this was an offence at the lower end of the scale. It must be remembered that most offences of aggravated break and enter and commit indictable offence in company involve the indictable offence of stealing. That is, stealing is usually much less serious than this offence of affray where violence, and considerable violence, was used. 16Mr Leary began by submitting that Community Service was appropriate. That does have some attractions, requiring that Mr Papara perform what would have been a large number of hours of service to the community, but I am satisfied the circumstances of this offence require a sentence of imprisonment. A Community Service Order does not adequately reflect the objective gravity of the offender's conduct. 17What form should that imprisonment take? Mr Leary suggested a suspended sentence of imprisonment. Here it is important to look at what that would involve for Mr Papara. If he completes the bond and complies with its conditions he would receive no effective punishment at all. So having assaulted a policeman in Queensland, having been involved with an offence where he was armed with a knife and another affray whilst drunk, and having committed the offence for which I am about to sentence him his effective punishment would be the fine of $700 he was made to pay for the Queensland offence. That would, I am satisfied, send completely the wrong message to Mr Papara. It would encourage him to think that he can continue to do what he is doing and effectively get away with it. It would also send the wrong message to others in Mr Papara's situation. As I noted at the very beginning of these remarks on sentences offences of this type are too common. Anyone like Mr Papara who in the future thinks that they will go out and get drunk, break into some premises and then assault people inside must learn that serious punishment follows. 18I have determined the length of the sentence that should be imposed upon Mr Papara. I am satisfied that it is likely that it will be a sentence of less than two years. In my view the appropriate sentence, should Mr Papara be eligible for it, is an Intensive Corrections Order. 19I will refer Mr Papara for assessment into his suitability to serve the sentence of imprisonment I will impose upon him through that means. 20So his bail is continued on the current conditions, in addition. * He is to live at XXXX with his mother. * He is to report to the city office of Probation and Parole Service within seven days. 21Mr Papara, you are not out of the woods yet. If you are suitable for an Intensive Corrections Order it is likely you won't go to gaol, but if you are not suitable it's likely that you will go to gaol. So that means you've got to cooperate with the Probation and Parole Service. One thing they will be concerned about is your conduct if you drink. You are going to have to satisfy them that you can stay out of trouble, because if you do not satisfy them that you are suitable to do this sentence by means of an Intensive Corrections Order you will probably go to gaol. Do you understand that?