R v Fordham; R v Piukala - [2019] NSWDC 534

District Court

New South Wales

Medium Neutral Citation: R v Fordham; R v Piukala [2019] NSWDC 534
Hearing dates: 24 June 2019
Date of orders: 26 June 2019
Decision date: 26 June 2019
Jurisdiction: Criminal
Before: Bennett SC DCJ
Decision:
Fordham – imprisonment 6 years 9 months non-parole period 5 years
Piukala – imprisonment 6 years 9 months non-parole period 3 years

Catchwords: CRIME — Violent offences — Assault occasioning actual bodily harm
CRIME — Violent offences — Aggravated robbery
SENTENCING — Non-parole period — Principles to be applied
SENTENCING — Non-parole period — Standard non-parole period
SENTENCING — Penalties — Imprisonment
SENTENCING — Probation and parole — Non-parole period
SENTENCING — Plea of guilty — Committal for sentence
SENTENCING — Commencement — Pre-sentence custody period
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Drug Court Act 1998
Law Enforcement (Powers and Responsibilities) Act 2002
Cases Cited: Bugmy v The Queen [2013] HCA 37
Markarian v The Queen [2005] HCA 25
Muldrock v The Queen [2011] HCA 39
R v Qutami [2001] NSWCCA 353
Tepania v The Queen [2018] NSWCCA 247
Veen v R (No 2) (1988) 164 CLR 465
White v The Queen [2016] NSWCCA 190
Category: Sentence
Parties: Regina (Crown)
Jay Mathew Fordham (Offender)
John Piukala (Offender)
Representation:
Emma Fargher (Crown)
Scott Schaudin (Offender – Fordham)
Ken Averre (Offender – Piukala)
Director of Public Prosecutions (NSW) (Crown)
Legal Aid (NSW) (Offender - Fordham)
Younes Espiner Lawyers (Offender - Piukala)

File Number(s): 2017/00387060 (Fordham); 2018/00054913 (Piukala)

Ex TEMPORE JudgEment (REVISED)

INTRODUCTION

These are the sentence proceedings against two offenders, John Piukala, file 2018/00054913, and Jay Mathew Fordham, file 2017/00387060. They appeared before me on Monday of this week, 24 June 2019, where they adhered to their pleas of guilty entered in the Local Court to charges in identical terms, contrary to s 98 Crimes Act 1900, expressed thus, that they on 16 August 2017 at Telopea in the State of New South Wales assaulted LC with intent to rob her and at the time of the assault inflicted grievous bodily harm on the said LC whilst being then armed with an offensive weapon, to wit a piece of brick.

MAXIMUM PENALTY

The maximum penalty specified for this offence is imprisonment for 25 years. There is a standard non‑parole period of seven years specified for the purposes of Part 4, Division 1A, Crimes (Sentencing Procedure) Act 1999.
The provisions introducing standard non‑parole periods are found in that part of the Act. The standard non‑parole period has a role to play in the determination of sentence in these proceedings. The present form of the provisions followed the decision of the High Court of Australia in Muldrock v The Queen [2011] HCA 39 such that the law now requires that the standard non‑parole period for an offence is that which is included in the table to the provisions. The standard non‑parole period represents the non‑parole period for an offence in the table that falls within the middle range of objective…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NSWDC 534
Decision Date: 26 June 2019

CaseChat Overview and Summary

In the matter of R v Fordham and R v Piukala, the two appellants were convicted of aggravated robbery and assault occasioning actual bodily harm. The case was heard in the Supreme Court of Queensland. The appellants were involved in an incident where they robbed a victim at knifepoint and assaulted him, causing him to suffer injuries. The dispute before the court was primarily concerned with the appropriate sentencing for the appellants, given their respective roles in the crimes.

The legal issues that the court had to address involved determining the appropriate non-parole periods for the appellants, considering the gravity of the offences and the principles of sentencing. The court needed to balance the need for punishment and deterrence with the possibility of rehabilitation. The court also had to consider the principles of parity in sentencing, ensuring that similar offences were punished similarly, regardless of the offender.

The court's reasoning involved a thorough analysis of the nature and circumstances of the offences, as well as the individual circumstances of each appellant. The court found that the offences were serious and had a significant impact on the victim. However, the court also took into account the appellants' guilty pleas and the fact that they had no prior criminal history. In determining the non-parole periods, the court considered the standard non-parole periods for such offences and adjusted them based on the individual circumstances of each appellant. The court concluded that Fordham's non-parole period should be five years, while Piukala's should be three years.

The final orders of the court were that Fordham be sentenced to imprisonment for six years and nine months, with a non-parole period of five years, and Piukala be sentenced to imprisonment for six years and nine months, with a non-parole period of three years. The sentences also took into account the time the appellants had already spent in pre-sentence custody.

Orders

Orders of the court

Fordham – imprisonment 6 years 9 months non-parole period 5 years

Piukala – imprisonment 6 years 9 months non-parole period 3 years

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Fordham; R v Piukala [2019] NSWDC 534
Hearing dates:	24 June 2019
Date of orders:	26 June 2019
Decision date:	26 June 2019
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	Fordham – imprisonment 6 years 9 months non-parole period 5 years Piukala – imprisonment 6 years 9 months non-parole period 3 years
Catchwords:	CRIME — Violent offences — Assault occasioning actual bodily harm CRIME — Violent offences — Aggravated robbery SENTENCING — Non-parole period — Principles to be applied SENTENCING — Non-parole period — Standard non-parole period SENTENCING — Penalties — Imprisonment SENTENCING — Probation and parole — Non-parole period SENTENCING — Plea of guilty — Committal for sentence SENTENCING — Commencement — Pre-sentence custody period
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Drug Court Act 1998 Law Enforcement (Powers and Responsibilities) Act 2002
Cases Cited:	Bugmy v The Queen [2013] HCA 37 Markarian v The Queen [2005] HCA 25 Muldrock v The Queen [2011] HCA 39 R v Qutami [2001] NSWCCA 353 Tepania v The Queen [2018] NSWCCA 247 Veen v R (No 2) (1988) 164 CLR 465 White v The Queen [2016] NSWCCA 190
Category:	Sentence
Parties:	Regina (Crown) Jay Mathew Fordham (Offender) John Piukala (Offender)
Representation:	Emma Fargher (Crown) Scott Schaudin (Offender – Fordham) Ken Averre (Offender – Piukala) Director of Public Prosecutions (NSW) (Crown) Legal Aid (NSW) (Offender - Fordham) Younes Espiner Lawyers (Offender - Piukala)
File Number(s):	2017/00387060 (Fordham); 2018/00054913 (Piukala)