R v Isaia

[2023] NSWDC 389

District Court

New South Wales

Medium Neutral Citation:

R v Isaia [2023] NSWDC 389

Hearing dates:

20/7/23

Date of orders:

20/7/23

Decision date:

20 July 2023

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Convicted and sentenced to an aggregate term of imprisonment of 4 years with a NPP of 2 years 6 months (18/5/22-17/11/24). I find special circumstances.

The indicative sentences are (taking into account a 25 percent discount):

Seq 1 Robbery armed with dangerous weapon – 3 years 6 months

Seq 2 Damage property – 3 months

Seq 3 AOABH in company – 13 months

Seq 4 Intimidation – 4 months

I make the orders sought in the Consent Order signed by me today.

In relation to the breach of the CCO for H8071774/1 (Drive whilst licence cancelled) – I revoke the CCO but I take no further action.

Catchwords:

Crime – Sentence – Robbery armed with a dangerous weapon – Damage property – AOABH in company - Intimidation

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

R v Henry [1999] 46 NSWLR 346

Category:

Sentence

Parties:

NSW DPP – Crown
Sene Isaia - Offender

Representation:

Mr Hooper for Crown
Mr F Coyne for Offender

File Number(s):

22/143888

remarks on sentence – ex tempore (revised)

1. Sene Isaia is for sentence in relation to four offences to which he has entered pleas of guilty. Those being sequence 1 robbery whilst armed with a dangerous weapon for which the maximum penalty is 25 years imprisonment; sequence 2 which is an offence of damaging property, namely a mobile telephone which carries a maximum penalty of five years imprisonment; sequence 3 which is an offence of assault occasioning actual bodily harm in company which carries a maximum of seven years imprisonment; and sequence 4 an offence of intimidation which carries a maximum penalty of five years imprisonment. The maximum penalties are of course important guideposts in the sentencing exercise to which I have had regard.

2. The offender pleaded guilty at the earliest opportunity and I therefore intend to allow a 25% discount on account of the utilitarian value of those pleas.

FACTS

3. The facts are agreed and in essence are as follows. The offences occurred on the evening of Sunday 15 May 2022 in the course of an incident just outside the Westfield Shopping Centre in Hornsby. The victims of the offences were 18 year old Nicole Prochnik, almost 18 year old TS, and 29 year old Matthew Chow. The statement of facts refers to four other persons as co-accused, namely Matthew Jegede, Sioele also known as Joel Finau, Danika South and Emese Hasovits. However the facts and the CCTV material to which I have been taken make it clear that in the incident that occurred on the evening of 15 May 2022 those events primarily relate to the actions of this offender and Mr Finau who I am informed is now deceased.

4. By way of background, the statement of facts note that on Friday 13 May 2022 Matthew Jegede and Joel Finau were involved in an altercation with the ex-boyfriend of Nicole Prochnik which related to the sale of drugs. During this altercation Jegede was injured and items were stolen from him. The facts record that the “meet up”, which presumably is a reference to the meeting during which the altercation occurred, had been arranged by Ms Prochnik. After this altercation Jegede and this offender engaged in communications about Prochnik’s identity, her social media accounts, and where she attended school. Also, the other persons Danika South and Emese Hasovits exchanged messages where they discussed the involvement of Ms Prochnik in the altercation of 13 May 2022 and made arrangements to meet with Prochnik on the pretence of buying from her some items she was seeking to sell on an internet application called “Depop”, which apparently is a second hand clothing sales app. The Statement of Facts notes that their intention upon meeting with Prochnik was to “grab her” and have her “zip tied”. Ms Prochnik agreed to meet with Hasovits and South, whom she had not met before, and was under the impression that she was meeting them to sell a jacket and a purse. Matthew Jegede asked this offender to attend the meet up with Prochnik to intimidate her and steal her phone and the offender agreed.

5. On Sunday 15 May 2022 the offender was messaged by Jegede confirming that she, that is Ms Prochnik, wanted to meet up, to which the offender replied “I’m all yours”. At 5.20pm the offender messaged a contact in his phone listed as “Bubbbb” saying “Vest is on and I’m going in bub. I love you”. Around the same time the offender sent a message to different phone contacts saying “Vest is on and phones going off. Keep everyone safe. See youse when I do”. At about 6.04pm a contact named Jasmine Pucariello who I understand to be a sister of the offender, sent to the offender a message which read “Imagine if someone did what you’re doing to your kids, just leave it alone”. To which the offender replied “Goodbye guys”. Around 6pm that Sunday, Jegede picked up the offender and Joel Finau in his car and drove them to Westfield Hornsby to meet with Nicole Prochnik. Jegede gave the offender a red and black gel blaster.

6. Meanwhile 18 year old Ms Prochnik had arranged for her friend, 17 year old TS, to attend the meet up with Ms Hasovits and Ms South. At about 6.59pm Hasovits, South, Prochnik and TS approached each other near a fountain outside Westfield’s. Ms Prochnik then pulled out the jacket and purse that she was seeking to sell. Less than a minute into the conversation the offender and Mr Finau approached. The offender was wearing a black jumper with the name “Ricks Scaffolding” on it and dark shorts, while Finau was in a dark jumper and pants and a black cap. This offender took hold of TS, pulling on her hair while Finau grabbed Ms Prochnik, also pulling her hair. Hasovits and South stood by and watched. Although TS tried to pull away from the offender, he flung her heavily in the form of a judo throw onto the concrete pavement, after which she got up and ran into the shopping centre. This is the sequence 3 offence of assault occasioning actual bodily harm in company. Meanwhile the other assailant, Mr Finau, grabbed hold of Ms Prochnik, placed her in a headlock and then threw her to the pavement, after which he held or waved a knife near her head. This offender then approached Ms Prochnik, who was on the ground with Finau standing over her. The offender pulled up his shirt to show Prochnik the gel blaster pistol that was tucked into his pants. This caused Ms Prochnik to become very afraid as she thought it was a real firearm.

7. These events I have just described were captured on CCTV. At this point a passer-by, Matthew Chow, approached the offender and said “Hey, leave them alone, what’s wrong”? To which the offender responded “Do you want a fight, do you want to get hurt”? Mr Chow then took out his mobile phone and said he would call police but this offender slapped the phone from his hand, causing it to break on the pavement. This is the sequence 2 offence of damaging or destroying property. The offender also said to Mr Chow twice “Do you want to get shot”? This is the offence on sequence 4 of intimidation.

8. The facts note that Mr Chow’s Google Pixel 6 phone was rendered unusable after being smashed to the ground and it was worth about $1,000. After this the offender turned back to Ms Prochnik who was still on the pavement with Finau standing over her. The offender then lifted his shirt and showed Prochnik the gel blaster that was in the waistband of his shorts and then grappled with Prochnik, taking her mobile phone and walking away with it. This is the sequence 1 robbery while armed with a dangerous weapon offence.

9. At this time another male bystander approached the two offenders and yelled at them to leave and the Statement of Facts notes that this male used a 3 metre stockman’s whip to “disperse the altercation”. The offender and his three associates then left the area and were followed part of the way by the male with the stockwhip. These incidents were captured on high resolution CCTV.

10. The facts note that although the offender is seen on CCTV to pull up his shirt to show the handle of the gel blaster to various persons, it is accepted that the onlookers do not take notice of the pistol. This obviously excludes however Ms Prochnik, to whom I have already referred as having seen the item.

11. After the incident Mr Jegede picked up the offender and his male co‑offender in a car after which the offender crushed Ms Prochnik’s phone and threw it away. The two victims spoke to police at Westfield and TS was taken by ambulance to hospital where she was noted to have blood on her hat, swelling to her ankle and a large bruise of 6 to 7 millimetres on her forehead. Ms Prochnik on the other hand sustained bruising to her torso and a bleeding lip. The offender was identified by police after they viewed CCTV footage.

12. The day after the offences the offender exchanged telephone messages with a contact known as “Bubbbb”, to whom I have earlier referred, referring to an apparent concern about police looking for him. He was arrested on 18 May 2022 and participated in an interview with police in which he made certain admissions as well as some self-serving statements. He told police that he had been in a “fight” with two girls at Hornsby, saying that he went there at the request of Mr Jegede who claimed to have been stabbed by Prochnik and her boyfriend. He told police that the plan was to “go to her”, that is Prochnik and “tell her to come, sit on the floor...talk about...the stabbing and get the phone and then leave”. I note in passing that this is entirely implausible and inconsistent with the CCTV and the immediate violence to which Ms Prochnik was subjected. The offender also told police that he brought the gel blaster for protection and to make the girls think it was a real gun. Those are in essence the facts upon which he is to be sentenced.

OBJECTIVE SERIOUSNESS   

13. Each of the offences carry significant maximum penalties and especially the aggravated robbery offence. However it is important that I make an assessment of the relative seriousness in an objective sense of the particular examples of the four offences that were committed by this offender.

14. Turning first to the robbery offence. In determining the appropriate penalty for the aggravated robbery offence I have had regard to the Court of Criminal Appeal guideline judgment in R v Henry [1999] 46 NSWLR 346. That guideline judgment identified a number of common features of armed robbery offences and suggested a full time custodial range of four to five years in the context of a late plea of guilty which would be one attracting at that time at least a 10% discount.

15. As to these Henry factors I note the following. The offender was 25 at the relevant time and therefore fairly young. His criminal history was fairly limited. He was, at the time of the robbery, armed with an item described as a gel blaster which falls within the meaning of “dangerous weapon” in the Crimes Act 1900. I accept, however, that it was not a weapon capable of killing or inflicting serious injury, although, as the Agreed Facts note, the item was perceived by Ms Prochnik to be real and caused her real fear. The offence was not an opportunistic or spontaneous one but rather one that involved some degree of premeditation and a degree of planning.

16. The violence cannot be said to have been limited as the robbery occurred in circumstances where the schoolgirl victim was cowering on the ground while being stood over by the other offender. So, while this offender did not inflict any actual violence on the victim of the, robbery she must have felt a very serious threat of violence from him. While the victim was not in a vulnerable position like that of a shopkeeper or taxi driver, she was somewhat helpless in that she was being towered over by the offender and his co-offender as numerous people walked past meekly and disingenuously pretending that nothing unusual was happening. It is a matter of real concern that serious violence like that before the Court can apparently be committed in front of a busy shopping centre with only a few brave souls being prepared to intervene while many others simply carried on with their shopping.

17. While no money was taken from the victim, the offender did take her mobile phone which was obviously of some value to her. In this case there is a plea of guilty but, consistently with the Henry factors, it is one that was entered in the face of a strong Crown case given that the offender and his actions were clearly caught on CCTV.

18. This was also an offence that was committed in company which would have significantly increased the sense of fear and threat experienced by the victim who was only 18 years old and much smaller than the offender. On the other hand there is no suggestion that the offender took the gel blaster out of his pants or pointed it at anyone and nor is there any suggestion that he himself inflicted violence directly upon Ms Prochnik. While I have found that there was a level of planning, it must be said that the offending was very amateurish and not at all sophisticated given that no attempts were made by either offender to disguise themselves in an area where there would obviously be CCTV and many witnesses.

19. It was also argued at one stage that this robbery was aggravated by reason that it was committed in the presence of a child, that being TS who was just then under 18. I have considered this argument but I note that TS had retreated into the shopping centre before the robbery was completed by the offender and I am not satisfied beyond reasonable doubt that she was present in a physical sense at the relevant time. Nor am I satisfied that she could actually see the robbery taking place from her position inside the shopping centre. I put this aspect aside therefore and note that the Crown earlier today appeared to resile from the submission in any event.

20. I assess this offence as falling near the mid-range of objective seriousness.

21. Turning then to the sequence 2 offence which involves the damage or destruction of Mr Chow’s phone. This offence involved the smashing of Mr Chow’s phone when the offender violently slapped it from his hand onto the pavement. As the Crown submitted, Mr Chow was acting completely appropriately and somewhat bravely as a good Samaritan and there was simply no excuse for the offender’s violent actions. The phone was clearly of some value, both in terms of its financial cost and its everyday usage by its owner. In my view this offence falls below the mid-range and towards but not in the lowest range of objective seriousness.

22. Turning to the sequence 3 assault occasioning actual bodily harm in company offence. This offence, which clearly is depicted in the CCTV material, was an act of extreme and cowardly violence. It involved the offender, a very much larger and stronger person, taking hold of TS by the hair and wrestling with her before performing what might be described as a body slam or judo style throw onto hard concrete. There is simply no excuse for the ferocity of this attack given that the offender could easily have just pushed the victim away or restrained her. It is surprising, and only by luck, that she did not suffer far more serious injuries than the bruising to her head and the swelling to her ankle. Also it is relevant that she was very young, being just 17, much smaller than the offender, and was a completely innocent party. I assess this offence as being near the mid-range.

23. Turning then to the sequence 4 intimidation charge. This offence relates to threats to Mr Chow to the effect of “Do you want to fight? Do you want to be hurt”? And after breaking his phone, saying “Do you want to get shot?”, although, as I have noted, it is not suggested that Mr Chow actually saw the gel blaster pistol. As the Crown submitted the offence was relatively fleeting, however these would not have been seen as idle threats by the victim given the circumstances of the assaults that he had witnessed on the two defenceless girls. I assess this offence as being slightly below the mid-range.   In assessing the seriousness of each of the offences I have also taken into account that they were committed in front of a busy shopping centre where numerous people were exposed to these disturbing events. While not relevant to the objective seriousness of any of the offences, an aggravating feature in this sentencing exercise is that the offender was on a community corrections order at the time of offending.

SUBJECTIVE MATTERS

24. Turning then to subjective matters relating to the offender himself. He is now 26 years old and has limited criminal history. His personal circumstances have been placed before the Court by means of some written material including many character references and a psychological report as well as some other material. The character references speak very highly of the offender and are in stark contrast to the impression that might be drawn from the offender’s character by reading the facts or watching the CCTV. The psychological report notes that the offender’s childhood was somewhat turbulent and unstable with some significant violence by his father towards his mother and also towards the offender. He also reported being bullied at school and that this had resulted in his becoming involved in fights on numerous occasions, although he apparently was a reasonable student and did complete his HSC. The psychologist suggests that the offender’s exposure to violence from an early age likely had the effect of normalising violence as an appropriate method of dealing with conflict and stress. While this does not mitigate or excuse the offender’s actions on the night in question, I accept that it provides some context to his resort to violence and the commission of these offences. The offender has no history of problematic substance abuse or serious mental health diagnoses. However he does have a significant history of self-harm and reported several suicide attempts. He has also suffered anxiety and depression which has worsened since a suicide in 2018 of his uncle with whom he apparently had a close relationship.

25. On a positive note the offender has indicated a willingness to seek out treatment to manage his ongoing issues with anxiety, stress, sleep problems and anger. There are some signs that he is genuinely motivated in this regard as indicated by his engagement in a number of education programs whilst in custody. A letter from the chaplain at the MRRC also notes him to be a good and trusted inmate. He is the father of a number of children, two of them with a former partner, and he has two young children with his current fiancée as well as a stepdaughter, and he apparently has a good relationship with each of these persons.

26. As to his version of the offences the psychologist noted that there were some inconsistencies. In this regard the offender said that he had travelled directly from the hospital where his fiancée had given birth, whereas the Agreed Facts include text messages on the day of the offence and discussion with a co-offender about Ms Prochnik’s identity and whereabouts in the approximate 48 hour period before the offence. I do not accept this version given by the offender to the psychologist. It is contrary to other evidence which indicates some level of premeditation and a degree of planning, albeit mostly by other persons.

27. I have taken into account that the offender’s incarceration has had and will continue to have a significant impact on his family, especially his fiancée and children. It must be said, however, that it is almost always the case that terms of imprisonment have those sorts of impacts on others. In this matter it has not been submitted that the circumstances fall within the exceptional category such that they can significantly reduce or mitigate the sentence. Nonetheless I have taken this into account as part of the synthesis of various matters in this sentencing exercise.

REMORSE

28. There is some remorse noted in the psychological report. The Sentencing Assessment Report also notes that the offender accepted responsibility and acknowledged his actions to have been unacceptable. While the offender did not today give evidence on oath I nonetheless accept that there is some remorse in this case.

REHABILITATION

29. Looking towards prospects of rehabilitation and future risk I make the following observations. The offender’s criminal history, as I have said, is fairly limited. He is noted in the Sentencing Assessment Report to be a medium-low risk, while testing by the psychologist suggested a moderate risk of reoffending. A positive factor in terms of the future is that the offender has a fairly consistent work history and good prospects of work on his release. There is also the very positive aspect that he retains the strong support of his fiancée and mother and other members of his family and that he has been described by his mother and his fiancée and some others as a committed father to his young children. However, given the offender’s exposure to violence on a regular basis as a child and youth, given the significant violence involved in the matters before the Court and the fact that the offender has as yet had little if any treatment, I am unable to assess his prospects of rehabilitation as being other than guarded or uncertain.

THE PANDEMIC

30. I have taken into account in determining the overall sentence the fact that the offender has been in custody since 18 May 2022 which coincides with at least some of the COVID pandemic and that any future time in custody may also be affected to some degree by the pandemic. I am well aware of the fact that the pandemic has had significant impacts on inmates in custody by reason of restrictions in access to visits and restrictions in access to various other facilities as well as the general stress involved in the risk of contracting the virus and frequent lockdowns.

PARITY

31. It was argued on behalf of the offender that I should have regard to the penalties imposed on co-offenders Ms South and Ms Hasovits, who were each placed on 18 month Community Correction Orders for an offence of assault occasioning actual bodily harm in company in relation to Ms Prochnik. I have had regard to this outcome in the Local Court. However each of those persons were of course being dealt with under a different jurisdiction and for only one offence. In those circumstances the Local Court result in those matters is not a matter to which I attach much weight.

ACCUMULATION AND TOTALITY

32. There needs to be some level of notional accumulation in my view for some of the offences before the Court today so as to recognise the different forms of criminality and the fact that there were three victims. In other words I have had close regard to totality principles. However, given that the four offences all occurred in the course of one relatively brief incident, it seems to me that the level of notional accumulation should not be great.

33. I have been asked to deal with the Community Correction Order that was imposed on 19 July 2021, by revoking that order and that application has not been opposed. I therefore revoke that order. However, I decline to take any other action given that I have already taken into account as an aggravating factor in the offender’s overall criminality the fact that he was on that CCO at the relevant time. As I have made clear already, that is not a factor relevant to objective seriousness of any of the offences but it is a matter of some aggravation in the overall criminal exercise.

34. I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 which I do not intend to list but very fundamentally they include, amongst other things, the need for personal and general deterrence, which must loom fairly highly in an exercise such as this, but also the importance of promoting, if possible the offender’s rehabilitation. I am satisfied for the purposes of s 5 of that same Act that no penalty other than imprisonment is appropriate.

DETERMINATION

35. I intend to impose an aggregate sentence given that I am sentencing for four different offences. I intend also to make an adjustment by means of a finding of special circumstances concerning the ordinary statutory ratio between non-parole period and head sentence. I come to that finding of special circumstances on the basis that the offender is still a relatively young man, that this is his first term of full time imprisonment, that part of that imprisonment has been affected and is likely to be affected by the pandemic and also by reason of the need for his being monitored for a significant period once he is released to the community.

36. As I have said, I intend to impose an aggregate sentence and therefore I am required to set out the indicative sentences that I would have imposed for each of the four offences.

37. Mr Isaia these are what are called indicative sentences, they are not the final sentence, I will make that clear in a moment. The indicative sentences are as follows and these are all after the 25% discount has been taken into account. For the sequence 1 robbery offence, a head sentence of three years six months. That has been arrived at on the basis of a head term of four years nine months from which the 25% discount has been removed. Sequence 2, destroying the phone, an indicative sentence of three months which is based on a starting point of four months from which 25% has been deducted. Sequence 3 assault occasioning actual bodily harm in company, the indicative term is 13 months, arrived at from a commencement point of 18 months from which 25% has been removed, and sequence 4, intimidation of Mr Chow, the indicative is four months based on a starting point of six months before the discount was taken into account.

38. Mr Isaia could you stand up and I will announce the sentence. I impose an aggregate sentence of four years. I impose a non-parole period of two years six months. Those will date from the date of your arrest which is 18 May 2022. The head sentence therefore will expire on 17 May 2026 and the non-parole period will expire on 17 November 2024.

39. I also make the orders set out in the consent document in relation to monetary compensation and I have signed those documents.

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Decision last updated: 22 September 2023