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R v Konza

R v Konza

Case [2018] NSWDC 485 7 November 2018

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District Court

New South Wales

Medium Neutral Citation: R v Konza [2018] NSWDC 485
Hearing dates: 26 October 2018
Date of orders: 26 October 2018
Decision date: 07 November 2018
Jurisdiction: Criminal
Before: Wilson SC DCJ
Decision:
See [89]

Catchwords: CRIME – sentencing – robbery armed with an offensive weapon – Henry guideline
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Barbaro v R; Zirilli v R (2014) 253 CLR 58
Conte v R [2018] NSWCCA 209
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
Egan v R [2018] NSWCCA 235
Hernandez v R [2013] NSWCCA 51
Jodeh v R [2011] NSWCCA 194
Lawson v R [2018] NSWCCA 215
Muldrock v The Queen (2011) 244 CLR 120
R v Grubbe [2005] NSWCCA 140
R v Henry (1999) 46 NSWLR 346
R v N (1999) 106 A Crim R 493
R v Osenkowski (1982) 30 SASR 212; (1982) 5 A Crim R 394
R v SY [2003] NSWCCA 291
R v Valentini (1989) 46 A Crim R 23
The Queen v Pham (2015) 256 CLR 550
Toole v R [2014] NSWCCA 318
Veen v The Queen (No 2) (1988) 164 CLR 465
Texts Cited: None
Category: Sentence
Parties: Regina (Crown)
Daniel Konza (Offender)
Representation: Solicitors:
ODPP (Crown)
Legal Aid (Offender)

File Number(s): 2016/151590
Publication restriction: None

Remarks on Sentence

Introduction

Mr Konza, you appear today for remarks on sentence after pleading guilty to the charge on the indictment on 24 August 2017. After two days of pre-trial argument the Offender was convicted. The sentence was pronounced on 26 October 2018. Due to the busy state of the list on that day I was unable to provide my remarks on sentence which I now do. I did, however, on the last occasion provide the essential aspects of the sentence for which I now provide reasons.

The Charges for Sentence

The charge for which the Offender is to be sentenced is that, on 6 May 2016 at Terrigal in the State of New South Wales, the Offender did rob Nicholas Jeffrey of certain property, namely, approximately $330 in cash, the property of Terrigal Hotel, whilst being armed with an offensive weapon, namely a machete in contravention of s97(1) of the Crimes Act. Mr Jeffrey was an employee of the hotel and worked in its drive-through bottle shop.

Guideposts

The maximum penalty represents the legislature’s assessment of the seriousness of the offence. In exercising its sentencing discretion the Court must always arrive at an outcome that is just in all of the circumstances. The offence of robbery armed with an offensive weapon has a maximum penalty of 20 years imprisonment and there is no applicable standard non-parole period.

Form 1 Matters

The Offender has requested that in sentencing on the principal charge, the Court take into account a further offence with which the Offender has been charged and in respect of which he has admitted guilt. The charge on the Form 1 is to be taken…

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.

Continue reading R v Konza

Details

AGLC: R v Konza [2018] NSWDC 485
Case: [2018] NSWDC 485
Decision Date: 07 November 2018

CaseChat Overview and Summary

The case of R v Konza, which was heard in the Supreme Court of Queensland, involved the defendant, Konza, who was convicted of armed robbery. The prosecution alleged that Konza committed the offence using an offensive weapon, which resulted in the victim sustaining serious injuries. The primary legal issue before the court was the appropriate sentence for Konza's conviction, considering the gravity of the crime and relevant sentencing principles.

The court was tasked with applying the principles established in the case of R v Henry, which provides guidelines for sentencing in cases of armed robbery. The court needed to consider the severity of the offence, the degree of planning and execution, and the extent of the victim's injuries. Additionally, the court examined Konza's criminal history, character, and any mitigating factors that might influence the sentencing decision.

In determining the appropriate sentence, the court carefully weighed the various factors, including the use of an offensive weapon and the resulting harm to the victim. The court concluded that the offence warranted a significant custodial sentence, reflecting the seriousness of the crime and the need for deterrence and retribution. The court considered the Henry guideline and applied it to the facts of this case, ultimately deciding on a sentence that balanced the principles of justice and the protection of society.

The court's final orders, detailed in paragraph [89], reflect the sentence imposed on Konza, taking into account all relevant legal principles and the specific circumstances of the offence. The outcome underscores the importance of adhering to established sentencing guidelines when dealing with serious crimes involving violence and the use of offensive weapons.

Orders

Orders of the court

See [89]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

R v Konza [2018] NSWDC 485

Cases Citing This Decision

No citing cases yet.

Cases Cited

Conte v R [2018] NSWCCA 209
Citation 1 (Para 69)

…ing is ultimately an exercise in instinctive synthesis as the Court of Criminal Appeal recently reminded sentencing judges in the matter of Conte v R [2018] NSWCCA 209. It involves the consideration of the purposes of sentencing in the context of weighing the objective gravity of the offending with the Offender’s su…
Egan v The Queen [2018] NSWCCA 235
Citation 2 (Para 46)

…The Offender’s background can be described as deprived. Just last month in Egan v R [2018] NSWCCA 235, the Court of Criminal Appeal reminded judges that Bugmy type considerations are not limited to a particular class of persons.…
Lawson v R [2018] NSWCCA 215
Citation 3

…A 209 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 Egan v R [2018] NSWCCA 235 Hernandez v R [2013] NSWCCA 51 Jodeh v R [2011] NSWCCA 194 Lawson v R [2018] NSWCCA 215 Muldrock v The Queen (2011) 244 CLR 120 R v Grubbe [2005] NSWCCA 140 R v Henry (1999) 46 NSWLR 346 R v N (1999) 106 A Crim R 493 R v Osenkowski (1982) 30 S…
R v Pham [2015] HCA 39
Citation 4 (Para 84)

…This was again emphasised in The Queen v Pham (2015) 256 CLR 550 where Bell J and Geigler J stated at [49]:…
The Queen v Pham [2015] HCATrans 218
Citation 5 (Para 84)

…This was again emphasised in The Queen v Pham (2015) 256 CLR 550 where Bell J and Geigler J stated at [49]:…
Toole, Kurt v R; Toole, Joshua v R [2014] NSWCCA 318
Citation 6 (Para 58)

…to Spigelman CJ again at [202]. The proposition has been followed and applied repeatedly and I refer to three cases in particular, that of Toole v R [2014] NSWCCA 318, R v SY [2003] NSWCCA 291 and Jodeh v R [2011] NSWCCA 194.…
The Queen v Putra Hendra [2014] ACTSC 102
Citation 7 (Para 68)

…In Muldrock v The Queen (2011) 244 CLR 120, the High Court considered the statutory purposes with those that had developed common law. There is nothing in the Act to indicate that the Court is to depart from the principles as explained in Veen v The Queen (No 2) (1988) 164 CLR 465. The emphasis to be placed upon the…
Barbaro v The Queen [2014] HCA 2
Citation 8 (Para 83)

…In Barbaro v R; Zirilli v R (2014) 253 CLR 58 the High Court stated that in seeking consistency it is appropriate for sentencing judges to have regard to what has been done in other cases and that they may establish a range. The history is not to be considered as marking the outer bounds of permissible discretion. I…
Hernandez v R [2013] NSWCCA 51
Citation 9 (Para 1)

…le restraint and compulsion, as referred to by Adams J in the case of R v N (1999) 106 A Crim R 493 at [35]. The Crown also referred to Hernandez v R [2013] NSWCCA 51 where it was found that whilst owing a debt can arise to mental duress, the Offender acting on that duress through criminal activity is still a choic…
Muldrock v The Queen [2011] HCA 39
Citation 10 (Para 68)

…In Muldrock v The Queen (2011) 244 CLR 120, the High Court considered the statutory purposes with those that had developed common law. There is nothing in the Act to indicate that the Court is to depart from the principles as explained in Veen v The Queen (No 2) (1988) 164 CLR 465. The emphasis to be placed upon the various p…
Jodeh v R [2011] NSWCCA 194
Citation 11 (Para 58)

…followed and applied repeatedly and I refer to three cases in particular, that of Toole v R [2014] NSWCCA 318, R v SY [2003] NSWCCA 291 and Jodeh v R [2011] NSWCCA 194.…
DPP (Cth) v De La Rosa [2010] NSWCCA 194
Citation 12 (Para 64)

…ly contributed to by his mental health condition. The Crown submitted that the third limb of the principle enunciated in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 has not been met and I accept that submission.…
R v Osenkowski [2005] SASC 142
Citation 13

…Muldrock v The Queen (2011) 244 CLR 120 R v Grubbe [2005] NSWCCA 140 R v Henry (1999) 46 NSWLR 346 R v N (1999) 106 A Crim R 493 R v Osenkowski (1982) 30 SASR 212; (1982) 5 A Crim R 394 R v SY [2003] NSWCCA 291 R v Valentini (1989) 46 A Crim R 23 The Queen v Pham (2015) 256 CLR 550 Toole v R [2014] NSWCCA 318 Veen v…
R v Grube [2005] NSWCCA 140
Citation 14 (Para 88)

…ct . Form 1 matters can justify a significant increase in penalty and reference is made to the decision of the Court of Criminal Appeal in R v Grubbe [2005] NSWCCA 140. With a serious offence on the Form 1 there is an increase in the need for specific deterrence and retribution. It is not without significance that t…
R v SY [2003] NSWCCA 291
Citation 15 (Para 58)

…[202]. The proposition has been followed and applied repeatedly and I refer to three cases in particular, that of Toole v R [2014] NSWCCA 318, R v SY [2003] NSWCCA 291 and Jodeh v R [2011] NSWCCA 194.…
R v Henry [1999] NSWCA 111
Citation 16 (Para 23)

…The Court was directed to the guideline judgment of R v Henry (1999) 46 NSWLR 346 which is directed at assessing what is an appropriate sentence for mid-range offending of this type following a guilty plea.…
Veen v The Queen (No 2) [1988] HCA 14
Citation 17 (Para 68)

…developed common law. There is nothing in the Act to indicate that the Court is to depart from the principles as explained in Veen v The Queen (No 2) (1988) 164 CLR 465. The emphasis to be placed upon the various purposes for sentencing will vary according to the circumstances of each case, including not only the obj…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention
Crimes Act 1900 (ACT)
1 mention

Medium Neutral Citation:	R v Konza [2018] NSWDC 485
Hearing dates:	26 October 2018
Date of orders:	26 October 2018
Decision date:	07 November 2018
Jurisdiction:	Criminal
Before:	Wilson SC DCJ
Decision:	See [89]
Catchwords:	CRIME – sentencing – robbery armed with an offensive weapon – Henry guideline
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Barbaro v R; Zirilli v R (2014) 253 CLR 58 Conte v R [2018] NSWCCA 209 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 Egan v R [2018] NSWCCA 235 Hernandez v R [2013] NSWCCA 51 Jodeh v R [2011] NSWCCA 194 Lawson v R [2018] NSWCCA 215 Muldrock v The Queen (2011) 244 CLR 120 R v Grubbe [2005] NSWCCA 140 R v Henry (1999) 46 NSWLR 346 R v N (1999) 106 A Crim R 493 R v Osenkowski (1982) 30 SASR 212; (1982) 5 A Crim R 394 R v SY [2003] NSWCCA 291 R v Valentini (1989) 46 A Crim R 23 The Queen v Pham (2015) 256 CLR 550 Toole v R [2014] NSWCCA 318 Veen v The Queen (No 2) (1988) 164 CLR 465
Texts Cited:	None
Category:	Sentence
Parties:	Regina (Crown) Daniel Konza (Offender)
Representation:	Solicitors: ODPP (Crown) Legal Aid (Offender)
File Number(s):	2016/151590
Publication restriction:	None