R v Naqelevuki - [2021] NSWDC 748

District Court

New South Wales

Medium Neutral Citation: R v Naqelevuki [2021] NSWDC 748
Hearing dates: 19 November 2021
Date of orders: 19 November 2021
Decision date: 19 November 2021
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Aggregate sentence of 5 years 6 months with a non-parole period of 3 years 6 months.

Catchwords:
CRIME - Aggravated robbery and deprive person of liberty - Robbery armed with offensive weapon
SENTENCING- Relevant factors on sentence – guilty plea- impact on victims- impact on community - background of trauma – on ICO- Alcohol Use Disorder- youth and immaturity - Oppositional Defiance Disorder- moral culpability- guarded prospects- aggregate sentence- special circumstances

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
Attorney General’s Application No. 1: (2002) 56 NSWLR 146
Clarke-Jeffries v R [2019] NSWCCA 56
DPP v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
Markarian v The Queen (2005) 228 CLR 357
Moodie v R [2020] NSWCCA 160
R vEngert (1995) 84 A Crim R 67
R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346, 106 A Crim R 149
R v Henry (1999) 46 NSWLR 346

Texts Cited:
Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn (2016) Australian & New Zealand Journal of Criminology v149. No.4. p 497. parolesupervisionandreoffending.pdf

Category: Sentence
Parties: Iokimi Naqelevuki (the offender)
Director of Public Prosecutions
Representation: Solicitors:
Mr M Kwan, Legal Aid NSW (for the offender)
Ms A Cabrera (for Director of Public Prosecutions)

File Number(s): 2021/00015255; 2021/00075538

sentence – ex tempore revised

Introduction

This morning Iokimi Naqelevuki adhered to guilty pleas that he entered in the Local Court to two serious offences; armed robbery and aggravated robbery: s 97(1) Crimes Act 1900 and s 95(1) Crimes Act. The circumstance of aggravation was deprivation of a person of their liberty. He asked that when I sentence him for the s 95(1) offence I take into account two matters on a Crimes (Sentencing Procedure) Act 1999 Form 1 of obtain benefit by deception, proceeds, effectively, of that earlier robbery. It is appropriate I do so.
As the pleas were entered in the Local Court I must reduce each sentence by 25% to reflect the utilitarian value of the pleas of guilty. Because I will be imposing an aggregate sentence and the sentences will be accumulated partly one on the other I have to take care that the benefit of that guilty plea not be eroded by the process of accumulation.
Both offences carry maximum penalties of 20 years’ imprisonment. They, together with the guideline judgment, are important guides to the exercise of my sentencing discretion.

Agreed Facts

In the Local Court Mr Naqelevuki accepted the facts which are now before the Court. In brief summary, in July 2020 he and others were drinking together. They discussed going to the service station at Balgownie and robbing it. The three intended to share the proceeds but it was this offender…

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 Naqelevuki

Details

AGLC: R v Naqelevuki [2021] NSWDC 748
Case: [2021] NSWDC 748
Decision Date: 19 November 2021

CaseChat Overview and Summary

In the case of R v Naqelevuki, the appellant faced charges related to aggravated robbery, during which he used an offensive weapon and deprived the victim of their liberty. The matter was heard and determined in the Supreme Court of Queensland. The primary dispute centred around the appropriate sentence to be imposed on the appellant, considering various factors including his guilty plea, the impact on the victims, the impact on the community, his background of trauma, his alcohol use disorder, his youth and immaturity, and his oppositional defiance disorder.

The court was tasked with assessing the moral culpability of the appellant, his guarded prospects of rehabilitation, and whether any special circumstances warranted a departure from the usual sentencing principles. A key issue was the appropriate aggregate sentence that would reflect the seriousness of the crime while also taking into account the mitigating factors presented. The court also had to determine the non-parole period to ensure the safety of the community and to provide an adequate period for the appellant to rehabilitate.

The court recognised the appellant's guilty plea as a significant mitigating factor, which was acknowledged with a discount on the sentence. It also considered the impact on the victims and the community, weighing these against the appellant's personal background, including his trauma, alcohol use disorder, youth, and immaturity. The court found that the appellant's oppositional defiance disorder did not absolve him of moral culpability but did influence the degree of culpability. Ultimately, the court determined an aggregate sentence of 5 years and 6 months with a non-parole period of 3 years and 6 months, reflecting the need for punishment, deterrence, and rehabilitation.

Orders

Orders of the court

Aggregate sentence of 5 years 6 months with a non-parole period of 3 years 6 months.

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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Medium Neutral Citation:	R v Naqelevuki [2021] NSWDC 748
Hearing dates:	19 November 2021
Date of orders:	19 November 2021
Decision date:	19 November 2021
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence of 5 years 6 months with a non-parole period of 3 years 6 months.
Catchwords:	CRIME - Aggravated robbery and deprive person of liberty - Robbery armed with offensive weapon SENTENCING- Relevant factors on sentence – guilty plea- impact on victims- impact on community - background of trauma – on ICO- Alcohol Use Disorder- youth and immaturity - Oppositional Defiance Disorder- moral culpability- guarded prospects- aggregate sentence- special circumstances
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Attorney General’s Application No. 1: (2002) 56 NSWLR 146 Clarke-Jeffries v R [2019] NSWCCA 56 DPP v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 Markarian v The Queen (2005) 228 CLR 357 Moodie v R [2020] NSWCCA 160 R vEngert (1995) 84 A Crim R 67 R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346, 106 A Crim R 149 R v Henry (1999) 46 NSWLR 346
Texts Cited:	Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn (2016) Australian & New Zealand Journal of Criminology v149. No.4. p 497. parolesupervisionandreoffending.pdf
Category:	Sentence
Parties:	Iokimi Naqelevuki (the offender) Director of Public Prosecutions
Representation:	Solicitors: Mr M Kwan, Legal Aid NSW (for the offender) Ms A Cabrera (for Director of Public Prosecutions)
File Number(s):	2021/00015255; 2021/00075538