R v Papuni [2019] NSWDC 269

District Court New South Wales

Medium Neutral Citation: R v Papuni [2019] NSWDC 269 Hearing dates: 24 January 2019 Date of orders: 24 January 2019 Decision date: 24 January 2019 Jurisdiction: Criminal Before: M L Williams SC DCJ Decision: Intensive Corrections Order for a period of 18 months: at [24]. Catchwords: SENTENCING — Single offence — Robbery in company SENTENCING — Aggravating factors — Home of victim or any other person — Breach of conditional liberty SENTENCING — Mitigating factors — Plea of guilty— Remorse — Rehabilitation — Unlikely to re-offend SENTENCING — Relevant factors on sentence — Objective seriousness Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Cases Cited: R v Henry (1999) 46 NSWLR 346 R v Lulham (2016) 263 A Crim R 287 Category: Sentence Parties: Regina (Crown)

Nathan Papuni (Offender) Representation: Ms O'Loughlin (Crown)

In person (Offender) File Number(s): 2018/102544

Judgment 1. Nathan Papuni, born in 1979, appears today unrepresented for sentence having pleaded guilty to one charge under s 97(1) of the Crimes Act 1900 of robbery in company which carries a maximum penalty of 20 years imprisonment, with no standard non-parole period. He pleaded guilty at the earliest possible opportunity and the Crown concedes that he is entitled to a 25% discount on any term of imprisonment for the utilitarian value of that plea. 2. The matter originally came before me last week as a mention, the offender having been taken into custody on a warrant. It was anticipated that he would be dealt with at the same time as two co-offenders Anthony Button and Aaron Cargill. Button failed to appear at Central Local Court on 27 November 2018 and a bench warrant has been issued for his arrest. Cargill has his case listed for mention in this court on 1 February 2019. However I was persuaded last week by Mr Papuni that he should be granted bail and that he wished to have his sentence dealt with as soon as possible. I adjourned the matter for today to enable him to do so. He has appeared without apparently having taken any legal advice, but still wishes to have his matter finalised today. He has given brief evidence as to his circumstances and has been cross-examined by the Crown Prosecutor. 3. He was in custody from the date of his arrest on 2 April 2018 until 18 January 2019. As he put it to me last week, he had served almost nine months for stealing a mobile phone, but there is a little more to it than that. He did however point out that both his alleged co-offenders had been on bail for the whole of that time. 4. The Agreed Facts show that the victim of the robbery is a Mr Lukins who lived in the Northcote Building in Surry Hills. At about 7.30am on 2 April Mr Lukins friend visited his unit and after he entered the unit the three co-offenders observed the unit from the lift area. They approached and tried to open the door but they were unable to do so. At 7.45am Lukins left his unit with John and then he went back. After saying goodbye to his friend he was pushing his bike down the stair well to the ground level. He had a mobile phone and his wallet and a backpack. 5. As he got to ground level Papuni pushed past him and blocked the door, he was in the company of Cargill and Button. Papuni yelled "Where's the drugs, give us some money, give us some drugs?" Lukins said, "I don't know what you are on about I'm just going out, I've got nothing." Lukins stepped backwards and he felt Cargill and Button pushing him in the back to stop him retreating. 6. Papuni then grabbed his mobile phone from his breast pocket, ripping his shirt. Button and Cargill continued to push Lukins in the back preventing him from walking backwards. Papuni hit Lukins as he screamed in the struggle. Button took his wallet and Cargill took the backpack from the bike. Lukins managed to escape and ran to reception where he disclosed to the security officer that he had been assaulted. Police arrived a short time later. What had been stolen was the backpack containing a lock, reading glasses and $20 in coins, a wallet and two bankcards, $35 cash, a Medicare card and a number of personal cards, and a mobile phone. 7. The three offenders went back upstairs with his property and separated. The backpack was located a short distance away. The CCTV footage shows them attempting them to enter into the apartment at 7.38 am, and waiting in the lift area. Papuni and Button follow Lukins to the stairwell. At 7.47 am the robbery itself is shown on about 20 or 30 seconds of video which I have seen. It then captures the three offenders leaving the scene and Papuni going back to Unit 1012 where he lived. 8. OFFENDER: I never lived there. 9. HIS HONOUR: What's that? 10. OFFENDER: I never lived there in Northcote. 11. HIS HONOUR: I'll just indicate, during the course of me reading out these remarks Mr Papuni's interrupted me to indicate that he never lived there. But all I'm doing Mr Papuni is reading from the Agreed Facts on which you are being sentenced, okay? 12. OFFENDER: I'm sorry. 13. He was taken to Surry Hills Police Station after his arrest at that unit and he said, in his interview, "I didn't take nothing off him." When asked what he did to the victim, he said, "I just pushed him in the chest, I started to try and scuffle with him," and he pushed him two or maybe three times. "Didn't give him a push in the head but he should've". As to why he committed the offence he said, "I told you what the purpose were, he ripped my mate off fifty bucks. I just went straight up to him, I pushed him, I want the $50 back. You seen it on the camera mate." Cargill also participated in an interview on 10 April when he was arrested. Button was arrested on 5 April. 14. Lukins suffers from back pain as a result of the injuries. 15. Mr Papuni has never been in custody for lengthy periods apart from the period after his arrest on this matter. He has spent the odd day in custody for breaches of bond or in relation to bail matters. His record has offensive language and resist police dealt with under s 10 in 2007. He was called up on that s 10 bond and he spent four days in prison. There is a contravene AVO dealt with at the same time. An assault occasioning in 2008 with 150 hours community service order. Section 9 bonds in 2017 for goods in custody and shoplifting, which were called up for breach and converted from 18 months to two years section 9 bonds. He was on that bond at the time of this offending, and he is called up for breaches of those bonds today, I do not propose to take any further action in relation to the breaches of the bond. 16. . There are minor possess drug matters in 2016.and the shoplifting offence, to which I have referred, leading to the section 9 bond, of him taking some packs of premixed liquor from a Liquorland in Redfern in December 2016. 17. There is no sentencing assessment report or other subjective material. 18. Mr Papuni is almost forty years of age. He has always worked in the demolition field, as he told me, until 2013 when he lost the sight of his left eye having been stabbed in an altercation. He has been on a Disability Pension doing some occasional work since then. He said he was on heroin for about three years and was on drugs at the time of this offending, which I take into account. 19. His wife has apparently fallen in with a bad crowd and has gone back to New Zealand. He has an eighteen year old son here who is a promising footballer playing for the Wests Tigers. Mr Papuni hopes to get back to some type of regular work on his ultimate release. He says he has been free of drugs for a considerable time and is prepared to have weekly drug testing if required to support that assertion. He said that he has put on weight and is feeling and looking a lot better having served his time in custody. 20. I take account of the matters set out in the Crown's helpful written submissions which remind me of the R v Henry (1999) 46 NSWLR 346 guideline judgment. As to objective seriousness of this offence I note there were no weapons used. The victim was robbed in his apartment block shortly after he left his unit. There was a degree of planning evident given that the TV footage shows some lurking in the vicinity for some time. There was a degree of violence used in the offence. All three co-offenders were directly involved in the robbery. The items stolen have been referred to and the offence clearly caused a significant degree of distress and I have referred to the Agreed Fact as to his back pain. 21. The offence was unprovoked notwithstanding the purported explanation given by Mr Papuni that it was an attempt to get back $50 from the man for some debt. The offending only came to an end when the victim managed to escape and ran into a security officer. The aggravating factors nominated by the Crown are appropriate and involved the actual or threatened use of violence and that it was committed in the home of the victim. As the Court said in R v Lulham (2016) 263 A Crim R 287 that encompasses areas immediately around the actual residence, and the offence was committed while he was on conditional liberty. 22. As to mitigating factors, the Crown acknowledges the plea of guilty and I accept his expressions of remorse given to me today. I think his prospects of rehabilitation are good and I think he is unlikely to re-offend in these circumstances where he has learned a lesson. 23. I accept the Crown characterisation of the objective seriousness as below the mid-range and notwithstanding that it is unnecessary to fix a point in the notional range given that there is no standard non-parole period. I accept the Crown submission that a term of imprisonment is required given the s 5 threshold has been surmounted. The Crown does not cavil with the suggestion that such a term of imprisonment may be served by way of an Intensive Corrections Order. 24. The orders that I make are: 1. The offender is convicted of the offence. 2. There being no other appropriate penalty, I impose a sentence of imprisonment 18 months. 3. Pursuant to section 7(1) of the Crimes (Sentencing Procedure) Act 1999, the court directs the sentence to be served by way of an intensive corrections order commencing today. 4. The conditions to apply during the term of the order are as follows: STANDARD CONDITIONS 1. You must not commit any offence. 2. The offender is to be placed under the supervision and guidance of the Community Corrective Services for as long as that Service deems necessary or desirable, but not exceeding the term of the order and the offender is to obey all reasonable directions of that Service (including any direction or instructions to undertake examination, assessment, therapy, treatment, counselling or urinalysis) whilst under supervision and guidance. ADDITIONAL CONDITIONS 1. Abstain from the consumption of illicit drugs. 2. The offender is to report to the OIC at the City office of CCS by 5pm Thursday 31 January 2019. 1. Failure to comply with the conditions of this order may result in further sanctions may be imposed by the Commissioner of Corrective Services or State Parole Authority. Those sanctions may include a formal warning, imposing more stringent conditions, or it may include revocation of this order. 2. The offender is to attend the Registry for finalisation of the intensive corrections order. H66394051 Section 9 Bond – Breach 1. I take no further action. H63981954 Section 9 Bond – Breach 1. I take no further action. Note – These extempore remarks were revised without access to the court file.