R v Nono
[2014] ACTSC 259
•31 July 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Nono |
Citation: | [2014] ACTSC 259 |
Hearing Date(s): | 30 - 31 July 2014 |
DecisionDate: | 31 July 2014 |
Before: | Murrell CJ |
Decision: | Two years’ imprisonment with a 16 month nonparole period. |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – Sentence – guilty plea – aggravated burglary – not the typical case – offender on conditional liberty |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 7, 33 Criminal Code 2002 (ACT) s 312 |
Cases Cited: | R v Henry (1999) 46 NSWLR 346 R v Nono [2011] NSWDC 141 R v Ponfield (1999) 48 NSWLR 327 |
Parties: | The Queen (Crown) Mandella Loker Nono (Offender) |
Representation: | Counsel Ms S McFarland (Crown) Mr R Davies (Offender) |
| Solicitors Director of Public Prosecutions (ACT) (Crown) Legal Aid (ACT) (Offender) | |
File Number(s): | SCC 47 of 2014 |
MURRELL CJ:
The offender is before the Court for sentence in relation to an aggravated burglary that occurred on 3 August 2013. The offender remained in a building at Braddon as a trespasser with intent to commit an offence that involved causing harm or threatening to cause harm to a person in the building, and he had an offensive weapon with him.
The maximum available penalty for an offence against s 312 of the Criminal Code 2002 (ACT) is 20 years’ imprisonment and/or fine of $280,000.
The circumstances in which the plea was entered were rather complicated. In the Magistrates Court, the offender was charged with a raft of relatively minor offences related to the incident. He agreed to plead guilty to some charges and the matter was set to proceed to sentence in the Magistrates Court on that basis. However, the prosecution then decided to proceed with more serious charges. Initially, the offender’s legal representatives sought to stay the proceeding or otherwise contest the prosecution’s right to proceed with more serious charges, but that application was later abandoned. The offender was committed for trial to the Supreme Court on two counts. At an early stage in the Supreme Court, the prosecution agreed to accept a plea of guilty to the second count in full discharge of the indictment. The plea was entered on 26 June 2014.
The offender has always been willing to accept the facts that form the basis of the current charge. In the context of the complex history of the discussions between the parties, he did enter a plea of guilty at a reasonably early stage and I will discount the sentence that I would otherwise have imposed by factor of 20 per cent.
Given the period that the offender has spent in custody in relation to the matter, the sentence should start from 20 December 2013.
Mr Grilec, an older man, was the lawful occupant of a unit in Braddon. On the day in question, he was at the residence with Ms Roberts, Mr Marol and Mr Broadhurst. At about 10.30 pm, the offender attended the premises and banged on the front door. The offender knew one of the occupants, Mr Marol, and for reasons that do not appear in the statement of facts, the offender had a grudge against Mr Marol. Through his legal representative, the offender said that the grudge concerned the borrowing of a mobile telephone and that he attended the premises for the purpose of retrieving his mobile telephone. The Crown has not been in a position to verify the offender’s contention. I proceed on the basis that there was a prior relationship between the offender and Mr Marol, and that the offender had a particular purpose in going to the premises that involved negative sentiments towards Mr Marol.
In any event, when the offender banged on the front door, he was told that he was not allowed to enter. He continued to bang on the door. Ultimately, he forced his way into the premises. He attempted to grab Mr Marol around the neck and a struggle ensued. As a result of the struggle, Mr Marol’s head struck a wall. The impact occurred above Mr Marol’s eye. Mr Grilec then came out of his room. The offender went to the kitchen, making the threat, “I’m going to stab youse all”.
The offender grabbed a paring knife with a 34‑centimetre blade, and threatened Mr Grilec, Mr Marol and Ms Roberts with the knife. Ms Roberts contacted the police, who attended almost immediately. In the short period between when the offender grabbed the knife and when the police arrived, the others present at the unit reasoned with the offender and managed to persuade him to sit and put the knife down.
As a result of striking the left side of his head on the wall, Mr Marol sustained a small laceration.
The offender was on parole at the time of the offence. In July 2011, the District Court of New South Wales had sentenced him to five years’ imprisonment with a non‑parole period of two years and three months in relation to the armed robbery of a pizza delivery man. On 3 May 2012, he was released to parole. Parole was revoked on 26 April 2014.
In relation to the objective seriousness of the offence, it occurred at a residence at night. Persons were at home and were expected to be at home; the offender’s purpose in attending the premises was to see Mr Marol, whom he expected to be there. The forced entry aggravates the offence. On the other hand, when he entered the premises, the offender was not armed. The seizing of the knife was unplanned and opportunistic.
The knife was not used. Initially, the offender initially issued threats. Later, he picked up the knife. Soon after he seized the knife, the occupants managed to persuade him to put it down. One of the occupants suffered a slight injury, but that was not intentional on the part of the offender. The victim accidentally hit his head against the wall.
Having regard to the short duration of the incident, the brief period for which the offender was armed and the general context in which the incident occurred, the offence is of relatively low objective seriousness. On the other hand, the matter assumes considerable significance because, at the time, the offender was on parole for an armed robbery.
The offender is now 24 years old. He was 23 years old at the date of the offence. He had a traumatic and difficult upbringing. He was born in Sudan. In R v Nono [2011] NSWDC 141 at [7], Judge Gibson said of the offender’s early years:
Up until he was about four he and his family lived in Sudan in conditions of the utmost hardship. The Probation and Parole Service presentence report perceptively notes that he would have witnessed events totally unknown to the Australian way of life. The offender regularly witnessed violence and atrocities and was deprived of food and shelter.
Her Honour went on to note that the conditions of deprivation continued after the offender and his family left Sudan. From Sudan, they went to Uganda and Kenya, where the family resided in refugee communities in which there was frequent conflict and significant physical deprivation. The offender declined to provide the author of the most recent pre‑sentence report with details of his childhood, possibly in part because he does not wish to recount associated traumas.
The offender and his family left Africa and came to New Zealand when the offender was about 10 years of age. In about 2007, the family came to Australia. The offender commenced school in Year 11 but soon thereafter dropped out of school and began to associate with a negative peer group. There had always been some conflict between the offender and his father, who was a strict disciplinarian. The conflict escalated after the offender left school and, in 2009, the offender left the family home. The friction with his father has affected the offender’s self confidence and self esteem and has exacerbated the problems of trauma associated with his early upbringing in Africa.
From 2007 the offender acquired a significant substance abuse problem. He began to drink heavily on a daily basis, and he also used cannabis. The offender claims that he has not abused substances since January 2014. At that time, he was out of custody briefly until April 2014. However, the claim that he has overcome substance abuse problems must be treated with some scepticism, given the entrenched nature of such problems and the fact that the offender has not addressed the underlying psychological issues that are undoubtedly related to his substance abuse.
The offender was intoxicated at the time of the offence. He has tended to blame his intoxication as being the cause of offending behaviour, showing little insight into the offending behavior and the impact of substance abuse on it. It is to be hoped that, either within or outside the custodial setting, the offender will obtain appropriate trauma counselling and assistance in relation to substance abuse problems. Whether that occurs will largely depend upon his willingness to accept assistance.
The pre‑sentence report says that the offender is at medium to high risk of reoffending, particularly if he does not address his substance abuse problems.
In sentencing the offender, I am aware of the New South Wales decisions in R v Ponfield (1999) 48 NSWLR 327 and R v Henry (1999) 46 NSWLR 346. These decisions are of limited assistance, not only because they relate to New South Wales but also because the circumstances of the subject offence are quite different from the typical scenarios that are discussed in those cases.
In sentencing the offender, I have regard to the sentencing purposes in s 7 of the Crimes (Sentencing) Act 2005 (ACT) and, insofar as they are relevant and are known to me, to the factors set out in s 33 of the Act. I believe that I have referred to the relevant matters.
The parties helpfully referred me to a number of cases in relation to aggravated burglary. They provide an outline of the general approach of the Court but, as the circumstances of the present case are out of the ordinary, the decisions provide limited guidance.
It seems to me that, given the maximum available penalty, the circumstances of the offence and the fact that it was committed when the offender was on parole, a sentence of full‑time imprisonment is the only appropriate penalty.
I impose a sentence of two years’ imprisonment from 20 December 2013 to 19 December 2015, and I fix a nonparole period to expire on 19 April 2015.
| I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Associate: Date: 1 October 2014 |
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