R v Natoli

[2016] NSWDC 316

District Court

New South Wales

Medium Neutral Citation:	R v Natoli [2016] NSWDC 316
Hearing dates:	28 January 2016
Date of orders:	28 January 2016
Decision date:	28 January 2016
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	Impose an aggregate sentence of imprisonment consisting of a non-parole period of 6 years and a head sentence of 10 years
Catchwords:	CRIMINAL LAW – Sentence – Forms 1 – Offender on parole at time of offence – Armed robbery – Aggravated steal from a person - Cause wounding in circumstances of aggravation – Corporal violence – impersonating a police officer – Vulnerable victims – Limited insight
Legislation Cited:	Crimes (Sentencing Procedure) Act
Cases Cited:	R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R R v Thomson and Houlton (2000) 49 NSWLR 383
Category:	Sentence
Parties:	The Crown Domenic Troy Natoli
Representation:	Counsel: Ms s Hall – The offender   Solicitors: Director of Public Prosecutions
File Number(s):	2014/170614

SENTENCE

1. HIS HONOUR: In 1999 the Court of Criminal Appeal published a judgment in which it indicated an appropriate range of sentences for the commonly occurring offence of armed robbery. That was in response to what was clearly a great deal of concern shared by many in the community as to the problems caused by prevalent offences of armed robbery. What to an offender is a very limited period of offending in that an offender goes into a shop, waves a knife around and leaves with some money can have serious ongoing consequences for the victims of such offences.

2. It often seems that when sentencing for offences of armed robbery, particularly before the Henry guideline judgment was passed (R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R) little attention was being paid to the consequences for the victims of armed robbery offences.

3. The offender, Domenic Natoli has served a lengthy sentence for a series of armed robberies. He was released to parole in 2013 but only relatively shortly later he committed another series of offences, including one of considerable gravity. The inevitable consequence is that he must go to gaol for a significant period of time.

4. These offences all occurred in the context of Mr Natoli’s drug use. I will speak about that in a bit more detail later but whist his father was dying he said that he coped by using drugs. In order to obtain money for drugs he had to commit offences of the type that I will now describe.

5. On 21 February 2014 he went into a convenience store or a supermarket in Newtown. A woman was working in the shop. She was carrying her five month old baby. The offender approached her, spoke with her about dog food and then left the store. He could not have been unaware of the circumstance that she was holding her five month old baby. Despite that he returned to the store a short time later and robbed her. He even walked behind the counter where the unfortunate victim, Ms Patel was standing, holding her baby. He produced a kitchen knife with a silver blade of about 10 centimetres in length, said quite unnecessarily “I have a knife” and then told her to give him all her money. She took about $165 from the cash register and put it on the counter. The offender picked up the money, wiped down the counter with his jumper sleeve and left the store with the money and a can of dog food. The seriousness of that offence is difficult to underestimate.

6. Somewhat remarkably he has also to be sentenced for a further offence committed in the very same premises. This offence, that I am about to describe, appears on a Form 1 attached to the offence of armed robbery that I have just described. This time it was not Ms Patel behind the counter but Mr Patel. This time the offender walked into the shop, again walked behind the counter to where Mr Patel was standing, produced a knife and told him to hand over all the money. Mr Patel gave him $100 in cash. When the offender demanded more Mr Patel told him he did not have any more money, so the offender took two packets of cigarettes and left the store.

7. In between the two offences committed on the same store the offender also assaulted a taxi driver in an attempt to rob him. Mr Islam, the taxi driver, picked up the offender in Newtown. The offender was behaving strangely, talking into a phone which did not appear to be connected to anything until finally the offender directed Mr Islam to go to Kings Cross via Liverpool Street. As the taxi approached Forbes Street the offender told Mr Islam to turn into that street. Mr Islam said “well this is a no through road” but the offender said he was looking for a girl. It was at this stage that Mr Islam turned to look at the offender and saw that he was holding out a knife towards his neck. The blade was about 8 inches long. The offender said “give me your money first”. The victim reached out and grabbed hold of the knife with both hands, he was clearly trying to defend himself, afraid that the offender would use the knife on him. He tried to push the knife away. As he did this he felt pain in his hand and saw that it was bleeding. He felt fear that the offender would stab him and they struggled for about 10 to 20 seconds over the possession of the knife. Mr Islam yelled out for help and got out of his taxi, so did the offender and he walked quickly out of sight. Mr Islam then drove to hospital. Fortunately the laceration he had suffered was not a terribly significant one, with tendons being intact and there being no injury to any nerve. He was treated with a single suture.

8. As well as that offence there is another offence for which I must specifically sentence the offender and when I do for that there is another matter on a separate Form 1. Both of the two offences I am about to describe arose in the same circumstances. A man by the name of Daniel Morali had no fixed place of abode and he was sleeping at Central Railway Station. He was woken up at about 4.40 am by the offender pretending to be a police officer and insisting that he consent to being searched. Mr Morali had some suspicions but did consent to what the offender was doing, believing him to be or at least possibly be a police officer. As part of the interaction between the two the offender took a mobile phone from Mr Morali. When he asked for it back Mr Natoli struck Mr Morali above his right eye. Mr Natoli ran away and Mr Morali noticed that there was blood dripping from his face. He spoke to the station manager, an ambulance was called and he was taken to St Vincent’s Hospital. He was found to have a 4 centimetre wound above his right eyebrow, the wound went down to the dermis layer and required seven sutures.

9. So I am to sentence the offender for aggravated steal from a person causing wounding in circumstances of aggravation being the use of corporal violence. The offence of impersonating a police officer appears on the Form 1 attached to that offence.

10. It is obvious these were very serious offences. They come on top of Mr Natoli serving a significant period in custody for a series of earlier armed robbery offences.

11. Mr Natoli gave evidence. He initially described his offences as being silly or stupid which seriously underestimated the criminality of his behaviour. At first when expressing his remorse for what he did he focussed his answer on his problems, not those of his victims. He better expressed remorse in his later evidence, although even in a letter written to the Patels he seeks to partially excuse his actions and I note that the letter was written only shortly before today’s proceedings. Despite what Mr Natoli says I consider he has very limited insight into the consequences of his criminal behaviour. To ever contemplate describing robbing a woman carrying a five month old baby as either silly or stupid shows a serious lack of understanding as to the wrongfulness of his actions.

12. Mr Natoli was raised in Newtown to parents of Italian background. His father worked as did his mother. He told the psychologist that they lived in a rough area and that his overall recollections of childhood were averse. Although he was cared for and never experienced neglect he told the psychologist that his father was an abusive and violent man who beat Mr Natoli and his mother regularly. He recalled being bashed from a young age, often without any provocation. Not surprisingly he was, as a result, nervous and hyper vigilant as a child because of the unpredictable behaviour of his father. Despite his father’s behaviour towards him he was clearly distressed by his father’s ill health at the time that he was released from custody in 2013.

13. It is clear that Mr Natoli’s intellectual capacity is limited. As Ms Hall says his inability to express remorse in the way judges might prefer to hear it expressed, has to be looked at in that context. His failure to comply with conditions of parole too as regards drug rehabilitation and the like also have to be looked at in the context of someone with limited coping skills due to his cognitive difficulties.

14. The offender began drug use at a relatively early age starting with cannabis at about the age of 10, binge drinking by 14 and experimenting with a wide range of more serious drugs from mid-adolescence. It was while using drugs heavily that he committed the earlier offences in 2006 and of course he committed the offences which I must sentence him also in the context of being a serious drug user. He attributes his drug use after he was released to parole in 2013 to the influence of a person with whom he was associated, she being a drug user, and distress he felt at his father’s ill health.

15. He has proposals for the future but obviously there will be a significant period of time before those plans can be put into effect. He has the support of his brothers who are in Court today. One of them has suggested that upon his release from custody he should come to live with him, get him out of Sydney where there might be more positive influences. He wishes to work in the construction industry on his release. There is thus hope for the offender’s future but given his criminal history to date his prospects of rehabilitation must be regarded as being guarded. One positive factor which Ms Hall relies on is that the offender has made a decision himself to stop using drugs. He has not used drugs whilst in custody for most of his current time there. He recognises the poor outcomes that result from drug use but of course whether that attitude remains upon his release from custody remains to be seen.

16. These were seriously aggravated offences, the victims were vulnerable in some cases, if not all. The lady carrying the baby behind the counter of the shop was vulnerable, the man, Mr Patel working alone in the shop was also vulnerable, the taxi driver was vulnerable because of his occupation and the homeless man was vulnerable because he was fast asleep at the time he was approached by the offender. Clearly the presence of a child in one offence was a seriously aggravating feature. No amendment to s 21A of the Crimes (Sentencing Procedure) Act was needed for that factor to be taken into account. There was planning of course, limited it would seem, but in each case the offender armed himself with a weapon. In the case of Mr Morali’s offence, the offender planned the way he would go about committing this offence without a weapon.

17. One particular factor which is to be looked at concerns the fact that the offender was on parole. It is important not to double count by both starting a sentence from perhaps the day sentence is imposed and also regarding the breach of parole as a seriously aggravating factor. I have decided to take the fact that the offender was on parole into account as an aggravating factor and therefore I will start the sentence that I will shortly announce from 6 June 2015.

18. The offender pleaded guilty to these offences but at different stages of the proceedings. Where he pleaded guilty after being committed for trial I will discount the sentence by about 15% and where he pleaded guilty in the Local Court I will discount the sentence by about 25% to reflect the utilitarian value of his pleas.

19. I should finally mention, as I began, the Henry judgment. There are some differences between the standard offence postulated in Henry. The offender was not young, he certainly did not have a limited criminal history and in no circumstance did Henry contemplate that someone might rob another while the victim was carrying a small child. On the other hand in the offender’s favour the plea of guilty was earlier than that postulated in Henry which it is explained in a later judgment, R v Thomson and Houlton (2000) 49 NSWLR 383 was for a late plea of limited utility.

20. I have decided to impose an aggregate sentence.

21. Were it not for me imposing an aggregate sentence, on count 1, the armed robbery of Ms Patel I would have imposed a sentence of 6 and a half years, that of course taking into account the matter on the Form 1. For the offence involving Mr Islam, sequence 10, I would have imposed a sentence of 5 years. For the offence involving Mr Morali, again taking into account the matter of a Form 1 I would impose a sentence of 5 and a half years. Instead I will impose an aggregate sentence consisting of a non-parole period of 6 years and a head sentence of 10 years, to date from 6 June 2015. That means that the offender is eligible to be released to parole on 5 June 2021.

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Decision last updated: 24 November 2016