Director of Public Prosecutions v Cugurno-Pfabe
[2021] VSC 749
•15 November 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0137
S ECR 2021 0138
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| TOMAS CUGURNO-PFABE and BENJAMIN NAGY | Accused |
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JUDGE: | FOX J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 October 2021 |
DATE OF SENTENCE: | 15 November 2021 |
CASE MAY BE CITED AS: | DPP v Cugurno-Pfabe & Anor |
MEDIUM NEUTRAL CITATION: | [2021] VSC 749 |
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CRIMINAL LAW – Sentence – Manslaughter – Co-offenders – Assault in context of attending to steal drugs – Early plea of guilty – Additional benefit of guilty plea where prosecution may have had difficulty establishing causation – Remorse – Both co-offenders equally culpable for offence – Cugurno-Pfabe no prior convictions and very good prospects of rehabilitation – Nagy prior convictions for armed robbery and aggravated burglary, on Community Correction Order at time of offending and reasonable prospects of rehabilitation – Parity – Youth – Cugurno-Pfabe sentenced to 7 years, 6 months’ imprisonment with a non-parole period of 4 years, 6 months – Nagy sentenced to 8 years’ imprisonment with a non-parole period of 5 years’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms C Parkes | Office of Public Prosecutions |
| For the Accused Cugurno-Pfabe | Mr H Rattray with Mr W Barker, of counsel | Balmer & Associates |
| For the Accused Nagy | Mr M McGrath with Mr W Blake, of counsel | James Dowsley & Associates |
HER HONOUR:
Tomas Cugurno-Pfabe and Benjamin Nagy, you have each pleaded guilty to one charge of manslaughter. The maximum penalty for manslaughter at the time of the offence was 20 years’ imprisonment.
The victim of your crime was Bradley Crawford. At the time of his death, he was aged 43 and living in a caravan, which was parked at his mother’s home in Scoresby. He had an ex-wife, Jenny Crawford, and three children, the youngest an 11 year old boy.
Mr Crawford was in poor health at the time of his death. He suffered from Chronic Obstructive Pulmonary disease and was a heavy smoker. His illness meant he experienced coughing fits, his physical movement was limited and he became breathless easily. His marriage had ended in 2015, and later that year he was the victim of an aggravated burglary and sustained a head injury. He became drug dependent and later started trafficking drugs. In September 2019 he was using and trafficking drugs, including cannabis, methamphetamine and cocaine. This is what led you to him on 15 September 2019.
There were two other co-offenders involved, Jake Oldis (‘Oldis’) and Denaye Whitfield (‘Whitfield’). Ms Whitfield is central to the narrative.
Between June and September 2019, Whitfield had attended Mr Crawford’s caravan on approximately ten occasions to purchase drugs. You, Mr Nagy, first met Whitfield in around July 2019. In early September, the two of you met by chance, and you enquired of her where she purchased her drugs and what her supplier had. She said he was somewhere off Eastlink and always had everything.
On 13 September, you, Mr Nagy, met Whitfield by arrangement at the Grand Hotel in Mornington. You asked her more questions about her supplier, and she realised you wanted to ‘rip him off’, that is, steal his drugs. This made her uncomfortable. She was vague about where Bradley was, and you told her you could speak later.
On the afternoon of 14 September, the two of you, Mr Nagy’s then girlfriend and Oldis checked into the Aria Hotel in Southbank. You attended a day party at a nightclub nearby, and came and went from the Aria Hotel. Meanwhile, on the night of 14 September, Whitfield checked into the Ferntree Gully Hotel. In the early hours of 15 September, she texted you, Mr Nagy, and said ‘We need to do this job like now before there isn’t one. I’ll call you in 15’. You replied that you were in the city, ‘so let’s meet’, and she replied, ‘Yeah, sweet’.
The two of you and Oldis then drove to the Ferntree Gully Hotel and met up with Whitfield. At around 5.00am an Uber passenger observed you, Mr Nagy, driving so erratically that he called 000 to report the vehicle to police. Police broadcast a ‘keep a lookout for’ to local units, but you were not picked up.
You arrived at the Ferntree Gully Hotel at around 5.30am. Whitfield observed you, Mr Nagy, to be very erratic and drug-affected. The group, that is the both of you, Oldis and Whitfield, consumed cocaine in Whitfield’s car. You, Mr Nagy, went to the tray of your ute at the approximate location of the toolbox. Inside this toolbox was a distinctive orange and black-handled mallet with a white head. You then returned to Whitfield’s vehicle and got into the passenger seat.
Whitfield drove to the victim’s home and parked outside. Oldis moved to the driver’s seat and stayed in the car. Whitfield and both of you walked to the caravan. Whitfield went inside alone. Mr Crawford consumed some cannabis and she purchased some ice. She went to the door intending to leave, and you, Mr Nagy, came through the door, followed by you, Mr Cugurno-Pfabe. Whitfield said, ‘No, no, no, we need to go. I said no’.
The victim was sitting on the bed. He stood up and said, ‘What the fuck is this?’. You, Mr Nagy, grabbed the victim and fell onto the bed. A wrestle ensued. You were asking him, ‘Where’s your shit?’, and he was telling you that you would not get anything. Mr Nagy said, ‘I need you to do something’, and you, Mr Cugurno-Pfabe, then jumped on the bed. Mr Nagy and the victim were rolling around on the bed, and Mr Nagy said, ‘He’s got a knife’.
Mr Cugurno-Pfabe then produced the mallet and struck the victim a number of times to his head. Mr Nagy held the victim by his throat. Whitfield heard something drop. It sounded heavy and was like a dull thud, but she did not see what it was. You, Mr Cugurno-Pfabe, then said, ‘It’s all right’, and Mr Nagy asked if the victim still had the knife. Mr Cugurno-Pfabe replied, ‘Nah’.
Whitfield was hysterical. Mr Cugurno-Pfabe yelled at her that she needed to move, and she ran out of the caravan. As she ran, she heard the victim call her a bitch. The two of you stole various quantities of illicit drugs belonging to the victim and left the caravan. You returned to the vehicle, and the group drove to the Ferntree Gully Hotel. The two of you and Oldis transferred back to Mr Nagy’s vehicle and drove back to the city. Whitfield returned to a room at the motel. At about 7.00am, you were captured on CCTV footage at McDonald’s in South Melbourne. You, Mr Cugurno-Pfabe, can be seen on the footage arranging a white plastic bag and its contents before placing it down your pants. You all then returned to the Aria Hotel.
Mr Crawford was found by a friend on the afternoon of 15 September. His friend attempted to wake him and then realised he was dead. Mr Crawford’s sister attended a short time later, and the police and ambulance paramedics were called. Mr Crawford was pronounced dead at the scene.
A crime scene was established and carefully examined. The victim was found lying on his bed. He had wounds and bruises to his forehead and face, and his nose and mouth were smeared with blood. When police moved the mattress upon which he had been located, a white rubber mallet with a black and orange handle fell to the floor. Bloodstaining and human hair was found on the head of the mallet.
On 16 September, a post-mortem examination was conducted by Dr Lynch. Significantly, Dr Lynch was unable to establish the cause of death. The victim had suffered facial fractures, including a fractured cheekbone, which were reflective of recent substantial impact to the cheekbone. Amphetamines and cocaine were detected, which may induce cardiac arrhythmia and thus may have contributed to the cause of death. The impact to the head may have resulted in a loss of consciousness, and depending on the position of the victim, may have compromised his airway and lead to death. Overall the cause of death remained undetermined.
The prosecution were unable to establish which of the two of you were responsible for causing the injuries to the victim. However, both of you were complicit in physically assaulting Mr Crawford, and thus engaged in unlawful and dangerous acts that caused multiple injuries which were a substantial and operating cause of his death. It is on this basis that both of you have pleaded guilty to manslaughter.
On 11 December 2019, the two of you, Oldis and Whitfield were all arrested at your respective homes and search warrants executed. You were taken to the Frankston Police Station for interview. Mr Nagy, Oldis and Whitfield gave ‘no comment’ records of interview. You, Mr Cugurno-Pfabe, participated in a record of interview. You made a number of admissions as to presence and admitted attending with Mr Nagy and Whitfield at the victim’s caravan. You said a fight broke out and you did not take anything from the caravan. Overall, you denied the offending and minimised your involvement. You were then placed in the holding cells and two undercover operatives, pretending to be prisoners, were placed in the cell with you. You told the operatives that you and a male friend had been asked by a female to attend the victim’s address, and she had said the victim ‘sells bulk gear’. When you arrived at the caravan, you said you opened the door and attacked the victim. You said you struck him twice to the head with a hammer, but the force of the strikes was not that hard, and he must have died because he was weak. You said you had got the hammer from the back of a ute nearby and that police now had the hammer. You said your friend held the victim down in a chokehold. You said you stole two ounces of methamphetamine and one ounce of cocaine, and you had ‘smashed’ the drugs you took from the victim and disposed of the clothing you had worn.
Whitfield subsequently participated in a second lengthy record of interview and made two comprehensive witness statements detailing the circumstances of what occurred. You were all subsequently released without charge pending further investigation.
On 7 August 2020, the two of you, Oldis and Whitfield, were re-arrested, charged and remanded into custody.
Oldis and Whitfield each pleaded guilty to robbery and were dealt with in the Magistrates’ Court. Oldis received a term of imprisonment of 54 days and an 18 month Community Correction Order. Whitfield was sentenced to 104 days’ imprisonment and an 18 month Community Correction Order.
Jenny Crawford wrote a simple and powerful victim impact statement that was read by the prosecutor on the plea. She had known Bradley Crawford since they were 14 years old, and they shared three beautiful children together. When she heard of his death, her heart broke. She then had to explain to her children that they had lost their father. She said her youngest son in particular misses him enormously, and all her children miss their father. As she wrote, ‘The impact of this on us all is significant and forever’.
There is nothing this Court can do to bring back Bradley Crawford or heal the significant grief experienced by his family, including his children. The sentences I will impose are in no way a measure of the worth of Mr Crawford’s life. The sentences reflect a number of matters that I, as a judge, must take into account, including the impact on the victims.
I turn now to the personal circumstances of each of you, commencing with you, Mr Cugurno-Pfabe.
You were aged 25 at the time of this crime, and are now 27 years old. You have no criminal history at all, and this is your first time before the Court.
You have two sisters, and the three of you were exposed to significant family violence from an early age. According to a report of Patrick Newton that was tendered on the plea, your father was a heavy alcoholic and a drug user, and your mother at that stage also used drugs. The family moved from Rosebud to Queensland shortly after your birth. Your father was prone to domestic violence, resulting in injuries, damaged property and police intervention. Your mother finally fled with her children to a women’s shelter, sought assistance from police and returned to Victoria.
Your father followed, and the next couple of years were marked by fear and abuse. Your mother moved homes, and you schools, several times. You lived with your grandparents, your mother’s parents, and became very close to your grandfather, who taught you woodworking.
When you were aged about seven, your mother married Mr Michael Jupp. Your stepfather has been a stable and positive presence in your life ever since. The marriage also expanded your family, and you have a younger half-brother who is the child of your mother and Mr Jupp, and also lived with your two stepsisters from time to time over the years.
You attended at least four different primary schools and struggled academically. You had problems with concentration, and your behaviour was disruptive. You attended high school and were a mediocre student. You had a large, but not particularly stable friendship circle, and constant behavioural problems. You were suspended from school on several occasions.
You left school at the end of Year 10 and completed an apprenticeship as a cabinet maker. You then worked in several cabinet-making jobs, as well as in scaffolding and your stepfather’s tiling business.
You have a significant history of illegal drug use. You commenced using cannabis at age 13 and smoked regularly on a daily basis until remanded on this matter. You began using ‘party’ drugs such as MDMA from about the age of 15. Around the age of 16, you began using amphetamines and progressed to the more powerful methamphetamine. You also regularly used cocaine. At times, you have used methamphetamine on a daily basis. You described to Mr Newton that your life was dominated by drug use or attempts to obtain drugs, and it had only been with difficulty that you had managed to maintain work and other activities.
You were bailed by this Court on 20 October 2020 with a number of strict conditions. Since being on bail, you have been drug-free, provided regular clean urine screens, worked in your mother’s antique shop and seen a psychologist regularly. A reference from the psychologist, Dr Kyriakoulis, was also tendered on the plea. You have engaged well with Dr Kyriakoulis and had 26 sessions focused around anxiety management and drug and alcohol counselling. Mr Newton also assessed your mental health. You have symptoms of mild depression, reflective of your current circumstances and the knowledge that you are going to gaol. You are currently taking an effective anti-depressant medication.
You are very well supported by your family and friends, as evidenced by the large number of character references tendered on your behalf. They consistently describe you as ashamed and remorseful for what you have done. They also consistently describe this crime as out of character for you, as you have always had a protective nature and stepped in and taken care of other people, particularly if they are vulnerable or in need. Your mother gave evidence on the plea. She said that since you have been released on bail, you are the best you have ever been. You have done everything that was required of you. She said the fact that you have taken someone’s life, particularly that you have taken someone’s father, has shattered you. It weighs on you that after all this, you get to come home and Mr Crawford does not. Your mother said you cry a lot together, and you are really devastated that you have hurt someone and also hurt your whole family. She said the idea of using drugs again scares you, and you want to live a good life.
You also gave evidence on the plea consisting of reading a letter you had written addressed to the Court. In that letter, you expressed your deep feelings of regret, guilt and shame. You accept that you are going to gaol and feel this is something you deserve. You are aware that no gaol sentence will bring Mr Crawford back or repair the lives you have ruined. You are committed to using your time in custody productively and returning to the community a better person. You are also determined to stay away from illegal drug use once you are finally released.
Overall I accept that you are genuinely remorseful and ashamed by what you have done. I make this finding despite what you said in your record of interview and to the undercover police operatives in the Frankston police cells. That was back in December 2019. It was the first time you had dealt with police; you told them some lies, but also made substantial admissions. When in the cells you believed you were talking to older, experienced criminals, which likely accounts for the callous way you described your actions. I also accept this offending is out of character for you. Whilst you have had a difficult early childhood and a long history of drug use, you have no prior involvement with the criminal justice system or prior convictions for any type of violence.
I find you have very good prospects of rehabilitation. I stop short of describing them as excellent because, according to Mr Newton, whilst you are low risk of re-offending, you have an elevated risk of relapsing into drug use and, if you resume illegal drug use, then your risk escalates. That said, I do accept that you are committed to remaining drug-free when you return to the community and you have proven, whilst on bail, that you are able to do that.
I turn now to your personal circumstances, Mr Nagy.
You were aged 22 at the time of this offence and are now aged 25, having turned 25 between the plea and sentence.
You are from a supportive family and are the youngest of three children. You have two older sisters, and your parents run an asphalting business. You attended Osborne Primary School in Mount Martha and experienced difficulties concentrating at school. This included acting out in disruptive ways. At an early age you were diagnosed by a paediatrician with ADHD. However, despite the diagnosis and accompanying difficulties, you progressed through school without any significant academic problems.
When you were aged ten, your father suffered a sudden stroke, and you witnessed his collapse. Whilst there was ultimately a positive recovery from the stroke, there was an extensive period of rehabilitation which you found extremely distressing. According to your father’s reference, he later learned that you blamed yourself for his stroke, even though it obviously was not your fault.
You attended Padua Catholic College in Mount Martha for secondary schooling, but your behavioural problems escalated. As a result, you were asked to leave school at the end of Year 9. You continued secondary schooling, but only lasted another six months at a different school. After leaving secondary school, you attended Chisholm TAFE in Frankston in an attempt to complete your Year 10 equivalency, but were unsuccessful. You then moved into vocational studies and attempted a Certificate 3 in Bitumen Surfaces, but did not complete this course due to your increased substance abuse around this time. Notwithstanding that you failed to complete TAFE, you were employed at your father’s asphalt business and have worked with your father for approximately 8½ years. You have also worked briefly in scaffolding and plastering.
You have a significant history of substance abuse. You commenced drinking alcohol at age 13 and developed a pattern of drinking to excess on weekends. This pattern continued through your teenage years and into your early 20s. You first used cannabis at the age of 14, and by 16 were using cannabis on a daily basis. You also commenced using ecstasy and amphetamines around the age of 15. At 16, you commenced using methamphetamine, or ‘ice’. This became a prominent focus of your social group and a significant part of your life. It also led into your criminal conduct.
You have a short but significant criminal history, consisting of one Magistrate’s Court appearance and two County Court appearances for violent crimes. It is the County Court matters that are relevant here and I have read both those Reasons for Sentence.
You first appeared in the Melbourne County Court aged 18 and pleaded guilty to armed robbery and committing an indictable offence on bail. You were on bail for charges of possessing a weapon and possessing a drug of dependence. The armed robbery occurred in May 2015, and the victim was a 16 year old boy. You had arranged to buy cannabis for him, but once he was in your car, you threatened him with a pruning saw and stole his phone and cash. You were in company with others and using ice at the time. You were dealt with for this armed robbery on 18 March 2016 and received a two year Community Correction Order (‘CCO’).
In September 2015, you committed an aggravated burglary. The offence was committed during the early hours of the morning at the victim’s own home. Again, you were in company. The crime involved the use of a double barrelled handgun, tomahawk and steel bar. Disguises were used, the victim was assaulted with a ‘solid pillow case’, and cash was stolen. This offending was also committed as a result of your methamphetamine use.
You were dealt with for the aggravated burglary and related offences on 26 October 2017. The sentencing judge noted the offence pre-dated your CCO and that you had made good progress on your Order. Despite the seriousness of your offending, the judge imposed a further three year CCO, which allowed you to continue with your rehabilitation whilst in the community. Unfortunately, and tragically for Mr Crawford, you did not succeed.
I am told that in July 2019, you were offered and used cocaine at a social event. Following this, you began using cocaine frequently and excessively. You continued to abuse drugs until you were arrested and remanded on this matter.
For completeness, I was informed of your one subsequent matter where you were dealt with at the Frankston Magistrates’ Court on charges of possess a Schedule 4 poison, possess a prohibited weapon and drive whilst suspended. You received a with conviction aggregate fine. The offences were committed after this offence but before you were charged.
You were granted bail by this Court on 22 December 2020. You participated successfully in the Court Integrated Services Program (CISP). You were successfully exited from that program on 24 May 2021. The CISP report states that you participated positively in all aspects of that program, including alcohol and drug counselling, and anger management. You have remained substance-free since you were granted bail and provided urine screens as per your bail conditions. You also commenced counselling with psychologist Kate Gibson in January this year, and have seen her on twelve occasions. According to her, you have a ‘diagnosis of PTSD aged 13’ and a ‘diagnosis of ADHD aged 15’. She said you have engaged well with therapy, and are developing insight into your actions.
Significantly, you became a father just prior to being granted bail. Your daughter was born on 10 December 2020, and this has had a profound impact on you. Your partner, now wife, Ms Thomas, first met you around July 2019. This is the same time you recommenced your drug use, namely, cocaine. She has seen the changes in you since you have been on bail, including living a healthier lifestyle and complying with all conditions. She said you are extremely committed to her and your daughter, and have been an involved and loving father. The other character references from your family and friends make similar observations. You continue to have the strong support of your parents, and the support of your wife and mother-in-law.
I am satisfied you are remorseful for your conduct. A number of the character references talk of your remorse for your actions and your sympathy for the victim. In particular Ms Thomas states that you have extreme remorse and sympathy, and she has discussed with you on many occasions the guilt that you feel for taking a life. Since becoming a father yourself, you feel particularly guilty that, through your actions, you took away someone else’s father.
I turn to your prospects of rehabilitation. I note you spent your 24th birthday at the Frankston Magistrates’ Court and your 25th birthday in gaol. Your prospects of rehabilitation are somewhat guarded. In your case, relapse into drug use may lead to violence. This much is evidenced by your prior convictions for drug-fuelled crimes that are not spontaneous or situational, but at least somewhat planned. On the other hand, I have material that shows you are capable of real change. In particular, since becoming a father, you have shown a commitment and dedication to your new family and are determined to care for them and be a better person. Subjectively, I accept that being separated from your wife and your baby and missing your daughter’s formative childhood years will be very difficult and burdensome for you whilst in custody.
You are also a reasonably young offender, and the principles in Mills’ case[1] relevant to sentencing young offenders have some application, although their relevance is substantially moderated given the seriousness of your crime and your prior convictions. I do not regard your youth as reducing your culpability in this case. I accept that your rehabilitation remains an important sentencing purpose given your age, but this is not a case where you are a first time young offender and entitled to real leniency. That occurred back when you were sentenced in the County Court in March 2016.
[1]Mills [1998] 4 VR 235.
Overall, I would characterise your prospects of rehabilitation as reasonable but they really depend on whether you are able to stay away from illegal drug use.
I turn now to other matters.
Both of you were initially charged with the far more serious offence of statutory murder. The matter resolved to a charge of manslaughter just prior to a contested committal, and you have both pleaded guilty to this offence at the earliest reasonable opportunity. This entitles you to a significant sentencing discount. It has spared the community the cost and time of a trial, and has spared the victims the ordeal of a criminal trial. It has also facilitated the course of justice and shows you take responsibility for your offending. Your plea of guilty has additional utilitarian or practical value, given the criminal justice system remains adversely impacted by the COVID-19 pandemic and court lists are backlogged.[2] I am also satisfied in both your cases that your pleas of guilty are evidence of real remorse.
[2]Worboyes v The Queen [2021] VSCA 169.
As a result of the COVID‑19 pandemic, conditions in prison have become more difficult, stressful and isolating. Personal visits have been impacted by the pandemic. They ceased, and have resumed at times, but I understand things have not returned to normal. Prisoners are still increasingly locked down and courses and programs reduced or suspended. For both of you, this will be your first time in custody as a sentenced prisoner, and being in custody for the first time, unable to receive personal visits, if that is the case, would be a significant additional burden on you.
There is one further significant reason why your pleas of guilty attract a sentencing discount. As the prosecutor fairly conceded, your pleas of guilty should also be given substantial weight having regard to the ‘significant hurdle’ created by the ‘causation issues’ which the prosecution would have faced at trial. Proof of causation was by no means a certainty, and by pleading guilty, you have relinquished any prospect of an acquittal. This is further evidence of both your remorse, and your willingness to take responsibility for your offending. A guilty plea in circumstances where you might well have had a viable defence warrants a substantial sentencing discount.[3]
[3]DPP v Bryan [2014] VSCA 54, [27].
Manslaughter is a serious crime, involving the taking of a human life. It encompasses a very wide range of conduct, which varies both in objective gravity and moral culpability. It was submitted on behalf of Mr Nagy that the unlawful and dangerous act was ‘lower than mid-range’, however overall his moral culpability was ‘at the mid-range level’. On behalf of Mr Cugurno-Pfabe, it was submitted this was a ‘mid-range example of the offence of manslaughter’. The prosecution did not take issue with these submissions, describing the offence as ‘certainly not at the high end’ but pointing to a number of serious factors. Labels and categorisations such a ‘mid-range’ are to be avoided, however it is necessary to address where your crime sits on the spectrum of seriousness, and for what reasons. The prosecutor drew my attention to a number of cases provided as a ‘broad guide’ only, noting that there were no truly comparable cases that they could locate.
In my view, your offending had the following serious features:
· It was committed in the victim’s own home, where he was entitled to feel safe. His home was a small space, and when you came through the door, he literally had nowhere to go;
· It was committed in company: there were two of you, against one of him;
· There was a degree of planning involving at least a robbery, and the rubber mallet was moved from Mr Nagy’s ute to Whitfield’s car;
· A weapon was produced and used. Mr Cugurno-Pfabe armed himself with the mallet and used it to assault Mr Crawford;
· Your offending occurred in the context of attending to steal drugs;
· In the case of Mr Nagy, it was committed whilst on a CCO.
The unlawful and dangerous act, being the assault of the victim, was not overly savage or sustained. I accept the victim was alive when you left; he was not ‘left for dead’, as the injuries were not so severe that you would expect him to die if left unattended. The injuries inflicted would not ordinarily result in death, and neither of you knew of his pre-existing health issues. The assault itself was not planned, and arose when Mr Crawford understandably tried to protect and defend himself. However when met with resistance, you did not retreat, but instead assaulted Mr Crawford and completed your plan of stealing his drugs. You also ignored Whitfield’s belated attempt to stop you going through with the robbery.
General deterrence, denunciation and punishment are important sentencing considerations. You took the life of Mr Crawford and in sentencing you, I must denounce your conduct and punish you for your crime. General deterrence – that is, the need to send a message to other would-be offenders – is also a significant sentencing aim. If you use illegal drugs and become involved in drug-related violent crime, including invading another’s home and ultimately taking their life, then you should expect to receive a substantial period of imprisonment. Specific deterrence – that is the need to deter each of you from committing further offences – is also a relevant sentencing factor. It is more significant in Mr Nagy’s case, given his criminal antecedents.
I turn to the question of parity. Broadly speaking, the parity principle reflects the aims of equal justice and consistency in sentencing. It is desirable that persons who have been party to the commission of the same offence should, if other things are equal, receive the same sentence, but of course things are not always equal. Matters such as age, background, criminal history and general character must be taken into account when sentencing. Here, there is no dispute that in terms of the offending itself, there is no basis to distinguish between you. There are other matters that are relevantly similar, such as the timing and value of your guilty pleas, your remorse and your strong family support.
There are of course differences between you: Mr Nagy is younger, but Mr Cugurno-Pfabe is still a young man. Mr Cugurno-Pfabe has had a more difficult and unstable early life, whereas Mr Nagy enjoyed more stability and support. The key difference between you lies in your criminal histories. Mr Cugurno-Pfabe has no prior appearances or convictions, whereas Mr Nagy has a relevant criminal history and was on a CCO at the time of the offending. Mr Nagy, you are not to be punished again for your prior matters, but unlike Mr Cugurno-Pfabe, you are not a first time offender, your prospects of rehabilitation are less certain and there is a greater need for specific deterrence. If you were to both receive identical sentences, Mr Cugurno-Pfabe would be left with a justifiable sense of grievance given this is his first offence.
It was submitted on behalf of both of you that whilst a substantial term of imprisonment is inevitable, a shorter non-parole period is appropriate in the circumstances. On behalf of Mr Nagy, the factors relied on in support of this submission were his youth, his guilty plea, his rehabilitation to date, his performance on bail, his family support and his completion of one CCO and substantial compliance with a second CCO. On behalf of Mr Cugurno-Pfabe, the factors relied on were his early guilty plea, previous good character, remorse and excellent prospects of rehabilitation.
I have come to the conclusion that in both your cases, there is reason to impose a sentence that allows for a substantial period of parole. In both your cases, such a sentence reflects the full value of your guilty pleas, genuine remorse, and progress whilst on bail. In the case of Mr Cugurno-Pfabe, it also recognises your lack of prior convictions and your very good prospects of rehabilitation. In the case of Mr Nagy, it reflects your youth and the importance that attaches to your rehabilitation. In my view, both of you and the community would benefit from there being a substantial period of supervision when you are finally released from custody.
In all the circumstances, the sentences of the Court are as follows:
Tomas Cugurno-Pfabe, you are convicted and sentenced to seven years, six months’ imprisonment. I fix a non-parole period of four years, six months’ imprisonment. I declare you have served 94 days by way of pre-sentence detention, such time reckoned as time already served under this sentence.
Benjamin Nagy, you are convicted and sentenced to eight years’ imprisonment. I fix a non-parole period of five years’ imprisonment. I declare you have served 156 days by way of pre-sentence detention, such time reckoned as time already served under this sentence.
I am obliged to state pursuant to s 6AAA the sentence I would have imposed on each of you but for your plea of guilty.
Mr Cugurno-Pfabe, I state pursuant to s 6AAA that but for your plea of guilty the sentence I would have imposed is a sentence of nine years’ imprisonment and I would have fixed a non-parole period of seven years’ imprisonment.
Mr Nagy, I state pursuant to s 6AAA that but for your plea of guilty the sentence I would have imposed is a sentence of nine years, six months’ imprisonment and I would have fixed a non-parole period of seven years, three months’ imprisonment.
I make the Disposal Order sought by the prosecution, noting the order is consented to.
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