R v Rairibi

[2018] NSWDC 435

District Court

New South Wales

Medium Neutral Citation:	R v Rairibi [2018] NSWDC 435
Hearing dates:	22 November 2018
Date of orders:	22 November 2018
Decision date:	22 November 2018
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	Impose an aggregate sentence of imprisonment consisting of a non-parole period of 2 years and 9 months with a head sentence of 5 years. The offender is to pay the sum of $1000 to the victim of the third offence.
Catchwords:	CRIMINAL LAW – Sentence – Armed robbery – Robbery in company
Cases Cited:	R v Henry (1999) 45 NSWLR 346
Category:	Sentence
Parties:	The Crown Maikeli Mocetadra Rairibi
Representation:	Solicitors: Director of Public Prosecutions – The Crown
File Number(s):	2017/402662017/441602017/235256

Judgment

1. HIS HONOUR: In 1999 the Court of Criminal Appeal handed down its second ever guideline judgment in the decision of R vHenry (1999) 45 NSWLR 346. This guideline judgment came in response to community concern at the level of sentences being imposed for armed robbery in this Court.

2. The Court described a common form of armed robbery and a common form of offender committing such offences and held that the guideline sentence would be one of four to five years. Later decisions clarified that the four to five year range was for a late plea of guilty.

3. As Mr Crawford has pointed out, the sentencing statistics are difficult to reconcile with adherence to the guideline judgment. Quite why that is I do not know, but given the well-known limitations on the use of sentencing statics, if I have to choose between guidance from the guideline judgment and guidance from the sentencing statistics, I will lean towards to the former.

4. Of course, as was memorably said by Spigelman CJ, “Henry is a guideline, not a tramline”. Sentencing judges’ discretion is not constrained by the Henry judgment. In this case there are many factors in common with the common offence postulated in Henry.

5. The offender pleaded guilty at the earliest opportunity to three offences of armed robbery. To two of those there are Form 1 matters attached.

6. The first offence was committed on 16 January 2017. The offender performed what is a fairly standard way of robbing the pizza delivery driver. He rang up a pizza shop, ordered pizzas, and waited outside the residence where the pizzas were to be delivered. When the delivery driver arrived on his motorbike he was flagged down by the offender who received the four pizzas, put the pizzas down, and then pointed a 25 centimetre knife towards the delivery driver. He pushed him with his left hand whilst holding the knife in his right hand and threatened him by saying “just fuck off here or else I’ll stab you”. To bolster his threat, he walked towards the motorbike and stabbed the seat with a knife. He then said, “give me your money”.

7. In response the victim gave the offender a bag containing $108, which was about all the offender could expect to get from a pizza delivery driver in the first place. That such a serious offence, capable of causing serious harm, was committed for such a miniscule amount of money demonstrates the ease with which the offender, at least at that stage, was prepared to commit a serious offence.

8. The next armed robbery was committed on 27 January 2017. This too followed a fairly well-known path. This time the offender was accompanied by another man. They approached the victim of this offence, who was holding a bag of groceries, in Haymarket. He was stopped by the offender and the co‑offender. The offender said, “give me money”. The victim said, “I don’t have much money”. The offender was carrying a knife. This one had a blade that was 5 to 7 centimetres in length. Once again, there was a threat, this time of death, when the offender said, “we want money, give us your money, or I will fucking kill you”.

9. The statement of facts records, not surprisingly, upon hearing the offender’s words Mr Marr immediately became scared and feared for his safety and complied with the offender’s demands. This time he handed over all of $15, in three $5 notes, as well as his debit card.

10. The offender demanded the PIN number associated with the debit card and Mr Marr, the victim, provided it. Later the offender tried to get money out of an ATM, an offence of the Form 1, and then used the ATM at a 7-Eleven store to obtain confectionary, including a Curly Wurly bar or two, totally $83.67.

11. The third armed robbery was committed in another, but still common, way. This was an armed robbery of a taxi driver. On 7 February at about 11.50pm the offender stood in the middle of the road and flagged a taxi down. As soon as he got in he produced what is described in the facts as “a large hunting knife” - although the offender claimed it was a cheese knife - with a 25 to 30 centimetre blade and held it towards the victim, the taxi driver.

12. Again, the threat inherent in the production of the knife was backed up by a verbal threat with the offender saying, “Give me whatever money you have, I’m a criminal. I just got out of gaol and I’m dangerous. Don’t fuck with me, I don’t care, I’ll do it, I’ll stab you”.

13. As a result the offender was able to reach into the centre console of the taxi and grab three $5 notes. He then insisted that the taxi driver give him more money. He took the taxi driver’s wallet and removed a thousand dollars out of it and left. He told the victim to drive off.

14. The facts records what the offender and the taxi driver did then, which lead to the offender’s arrest. He was found to have some tablets totalling 07.2 grams of Alprazolam in his possession when he was arrested. That matter also appears on a Form 1 attached to the robbery of the taxi driver offence.

15. All armed robberies are serious and these are no exception. The pizza delivery driver was vulnerable. When he did his food deliveries, like most food delivery drivers, he was operating alone at night and carrying a small sum of money. In the next offence the offender was not only armed, but in company, and threatened to kill Mr Marr, the victim of that offence.

16. In the third offence, the taxi driver too was a vulnerable person. He was alone, as taxi drivers invariably are, and carrying a substantial sum of money. He was threatened with stabbing and, to add to the experience, the offender was wearing a mask at the time.

17. The offender has a criminal history but nothing approaching this seriousness. This is his first time in custody, having been in custody bail refused since his arrest on 10 February 2017. As I mentioned, he pleaded guilty to these offences at the earliest opportunity. That would entitle him to a 25% discount on the sentence I would otherwise have imposed. As far as the Henry guideline is concerned, I think I may have mentioned this, the four to five year range was postulated on a late plea but Mr Rairibi’s plea was early.

18. Mr Rairibi is supported in Court today by his parents. They have visited him in gaol regularly. His father is a labourer, his mother is a high school teacher, and he has a younger sister.

19. What led to him committing these offences is clearly his use of drugs. Mr Rairibi told the author of a sentencing assessment report that most of his companions are drug users and many have criminal records relating to illicit substances.

20. Before he was arrested and put in gaol he was attempting to obtain a panel beating qualification at TAFE. An academic record showing his completion of some courses at TAFE was tendered on his behalf. He has plans upon release from custody to resume his attempt at becoming qualified as a panel beater.

21. In evidence before me today, the offender said that he needed - and I emphasis the word “need” - money in order to buy drugs. He may have just been guilty of imprecise expression, but in truth he did not need money at all. He wanted money in order to fund his drug habit. When he did not have money to buy drugs he had a choice. He could have accepted the position that he could not afford to buy any drugs and left people alone; but he did not. He made the criminal decision in which he put his desires to obtain drugs over the welfare and safety of the members of the community whom he robbed

22. It may well be that his decision to do so was contributed to by his youth. He is 23 years of age now but was only 21 at the time of offending. Although for the purposes of criminal law he was an adult, maturity does not immediately fall upon someone at the age of 18. I will take into account very much in the offender’s favour that he was youthful at the time he committed these offences.

23. What I will not take into account in his favour is any self-induced intoxication under which he operated at the time of his offending especially as the Crown led in cross-examination evidence that the offender knew at the time he committed the second and third offences, whilst intoxicated, that whilst intoxicated he had committed the first.

24. Perhaps most importantly of all, however, is the circumstance that legislation tells me that self-induced intoxication is not a mitigating factor for the purposes of sentencing this offender.

25. The offender expressed remorse both to the author of the sentencing assessment report and also to a prison chaplain who provided a letter to me. In addition, he accepted responsibility for his actions when he gave evidence today. I accept that he is remorseful.

26. As for his prospects of rehabilitation, certainly there is hope, but I cannot say that they are “good” as much will depend on what happens when he is released. I have no doubt that the offender wishes to put his drug-using days and his robbery days behind him and he will have the support of his parents, as I mentioned, as he does so. He will also have the support of the Probation and Parole Service who have indicated that they are prepared to supervise him.

27. Of course, the ease with which such offences are committed and their prevalence is such that general deterrence is of importance in the present sentencing exercise. Despite the offender’s desire, personal deterrence cannot be ignored. Indeed, the sentence I impose upon the offender will be part of improving his prospects for rehabilitation, because he will know that should he do in the future what he has done in the past, there can be only one outcome, namely substantial sentences of imprisonment.

28. That is not to say that I have ignored the need to impose a sentence which reflects the need to promote the offender’s rehabilitation. That is important as well of course. That need is particularly reflected in my finding of special circumstances in this case.

29. One issue that was raised in the course of submissions concerned whether I would impose sentences which were accumulative or wholly concurrent. Mr Crawford referred to a number of cases where the Court of Criminal Appeal has imposed entirely concurrent sentences for armed robberies. It remains however a matter of discretion for the sentencing judge as to whether that will be done in the individual cases.

30. In my view it would be quite wrong in the present case to fail to have a level of accumulation. That is necessary to reflect the substantial additional harm that each additional offence has caused. What is important of course is that I ensure that the overall sentence imposed is not a crushing one and reflects the principal of totality.

31. Both the Crown and Mr Crawford relied on what they said were comparative cases, acknowledging of course that not two cases are alike. Mr Crawford took me through the cases the Crown relied on, pointing out important differences. Madam Crown did something similar with Mr Crawford’s cases too. Nevertheless I found those cases helpful and I am able to take those differences into account when comparing those matters with the present in determining the appropriate sentence to impose upon the offender.

32. I return to where I started. The Henry guideline postulated a sentence of four to five years, is one which can be departed from in appropriate cases. Particularly relevant in this present case is the offender’s relative youth and this being his first group of serious offences.

33. I will impose an aggregate sentence. Were I not to have done so I would have imposed indicative sentences of three and a half years for each offence.

34. I acknowledge that there were different factors regarding the objective gravity of each of the three offences but they broadly balanced out. For example, whilst the middle offence was one committed in company the other two offences were robberies of vulnerable people.

35. The aggregate sentence I impose is as follows. I set a non-parole period of two years and nine months to date from 10 February 2017 with a head sentence of five and a half years. The non-parole period will expire on 9 November 2019.

36. I’ll make an order that the offender is to pay the sum of $1,000 to the victim of the third offence.

**********

Decision last updated: 31 January 2019