R v Saipani (No 2)
[2020] ACTSC 228
•18 August 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Saipani (No 2) |
Citation: | [2020] ACTSC 228 |
Hearing Date: | 18 August 2020 |
DecisionDate: | 18 August 2020 |
Before: | Murrell CJ |
Decision: | Offender sentenced to two years and four months’ imprisonment, with a nonparole period of fourteen months’ imprisonment. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Aggravated burglary by joint commission – Home invasion – Parity and co-offenders – Co-offenders sentenced for common assault and possess weapon |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 7, 33 Criminal Code 2002 (ACT) ss 45A, 312 |
Cases Cited: | Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 Wong v The Queen [2001] HCA 64; 207 CLR 584 |
Parties: | The Queen (Crown) Javarne Saipani (Offender) |
Representation: | Counsel M Howe (Crown) F Purnell SC (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Sharman Robertson Solicitors (Offender) | |
File Number: | SCC 100 of 2019 |
MURRELL CJ:
Introduction
On 15 July 2020, I found the offender guilty of aggravated burglary by joint commission, contrary to s 312 of the Criminal Code 2002 (ACT) (CriminalCode), by virtue of s 45A of the Criminal Code.
The maximum penalty for the offence is a fine of $320,000, 20 years’ imprisonment, or both.
The offender has been in custody since 15 July 2020. In relation to this matter, he was also in custody from 5 to 21 November 2018 (i.e. a period of 16 days). The sentence imposed will be backdated to 29 June 2020.
Facts
The full facts are set out in R v Saipani [2020] ACTSC 191.
As at 4 November 2018, MC, TE and DX resided at a unit in Lyneham. MC and TE were the principal occupants of the unit. DX was staying on a temporary basis. MC was the lessee, and she was entitled to determine who entered and remained upon the premises.
KM was a friend of MC. He was a drug user. On 4 November 2018, KM was at MC’s unit. He became angry, agitated, and/or frustrated. He was concerned about making a telephone call or calls. He spoke to Mr Butkovic (a co-offender), who was with the offender and Mr Kaddour (another co-offender) at that time. He advised Mr Butkovic of the address of the Lyneham unit.
The three men agreed that they would go together to the unit to see KM for the purpose of recovering money that KM owed to one or more of them. It was part of the agreement that, if necessary, threats and/or force would be used to extract the money. It was an implied part of the agreement that they would enter the premises and would remain there for as long as was necessary to extract the money from KM. They were prepared to enter and remain regardless of whether they had KM’s consent to do so.
They were unaware that MC and TE were the principal occupants of the unit and probably did not know that anyone other than KM was at the unit.
Mr Butkovic and/or Mr Kaddour brought with them two knives, a gold taser/baton, and a blue strobe torch. I am not satisfied beyond reasonable doubt that the offender knew that the co-offenders were taking offensive weapons with them.
When they arrived, MC and DX went to the front door. They were expecting a locksmith. Immediately, one of the three men shone an intense blue strobe light onto their faces, temporarily blinding them and frightening them. DX was pushed or stepped back, causing MC to injure her ankle.
When DX recovered from the strobe light, he greeted the offender and said something to the effect of “hello, come in, let’s talk” while the men were still standing outside. The men did not have MC’s permission to enter; they entered as trespassers. Alternatively, if they entered with DX’s permission, it was permission to enter and “talk”—it was not permission to enter for the purpose of threatening and assaulting persons within the unit. Further, at least Mr Butkovic and Mr Kaddour remained in the unit as trespassers. At no point did MC give permission for them to remain within her unit, assaulting and threatening KM.
After they entered the unit, Mr Kaddour and Mr Butkovic immediately attempted to rouse KM to consciousness, yelling something like “where’s the money?”. Mr Butkovic threatened KM with the taser/baton and swung it at DX. Mr Butkovic or Mr Kaddour punched DX on the side of his head, causing significant swelling. The offender was present when the co-offenders demanded that KM give them money and when DX was assaulted.
DX then went to his bedroom, accompanied by one of the men, probably the offender. If not at that stage, then at a later stage, DX was in his bedroom with the offender. There was no overt animosity between DX and the offender.
While DX and the offender were in the bedroom, Mr Butkovic and Mr Kaddour continued to demand that KM give them money. Mr Kaddour punched KM.
The forceful and aggressive conduct by the co-offenders at the time of entry and thereafter for the purpose of extracting money constituted an aggravated burglary.
MC directed Mr Butkovic and Mr Kaddour to leave the unit. They stated that they would only leave if they took KM with them. It is quite likely that the offender and DX were still in DX’s bedroom when MC directed the other men to leave.
TE had been in her bedroom. When she went to the lounge room, Mr Butkovic blinded her with the blue strobe torch. She witnessed Mr Kaddour punching KM repeatedly. She heard shouts of “give me the money, give me the fucking money”.
As she was in the hallway between her bedroom and the lounge room, TE saw DX and the offender. The offender apologised, saying “I didn’t realise this was your house”.
MC “calmed” the situation by persuading the men to “talk about it” and “smoke some weed”. They did “calm down”, voluntarily surrendering the gold taser and, later, a knife. DX and the offender joined the others in the lounge room and those present sat around, drinking and smoking marijuana.
TE was not part of the group in the lounge room. She jumped from the bedroom window, chased by Mr Kaddour. A neighbour rang police on her behalf.
When paramedics attended, KM told them that he had been assaulted as he “owed money” to the assailants.
Victim impact
DX provided the Court with a victim impact statement.
Since the offence, DX has felt “an intense state of depression”. He has experienced nightmares, night terrors, disturbed sleep, and disordered eating behaviours. He still struggles with anxiety and a fear of public spaces. He is no longer the “very confident, proactive and happy person” that he once was. He continues to see a psychologist.
After the offence, DX left his employment and was unemployed for more than three months while he tried to address his mental health and fear of public spaces.
The impact of the offence on DX was apparent when he gave evidence, although he may well have had some pre-existing problems.
Although they did not provide victim impact statements, I do not doubt that the offence had a significant impact on MC and TE. Soon after the offence, they chose to move interstate.
Objective seriousness
The Crown correctly characterised the offence as a “home invasion”. In Hogarth v The Queen [2012] VSCA 302; 37 VR 658, the Court stated (at [1]):
Home invasion is a particularly nasty form of criminal conduct. Typically, a home invasion involves multiple offenders entering a person’s home, carrying weapons, intending to rob or injure the victims in revenge for some actual or perceived wrong. The entry of the offenders — acting in anger and often fuelled by alcohol — is itself a terrifying experience for the householder(s), irrespective of what may occur after entry.
(citations omitted)
In White v The Queen [2016] NSWCCA 190; 261 A Crim R 302 at [14], Basten JA said:
[V]iewed from the perspective of the victim, being confronted by more than one person will have an additional element of coercion or intimidation. Viewed from the perspective of the offender, to have an associate present may embolden or reassure the offender in committing the offence.
In this case, the following factors inform the objective seriousness of the offending.
(a)The offence occurred in the complainants’ home, late at night, and it lasted for a significant period.
(b)During the incident, the co-offenders committed acts of violence and threatened violence that were primarily directed at KM, but which impacted on all the occupants of the home. While the offender did not commit those acts, he was in the unit when they occurred.
(c)The occupants of the home (MC, TE, and DX), as well as KM, were all threatened, if not actually assaulted.
(d)The offence was premeditated; it was motivated by desire to recover money owed as a drug debt by KM. MC, TE, and DX were collateral victims in a dispute over the drug debt owed by KM.
On the other hand, the objective seriousness is also affected by the following factors.
(a)The offender spent much of the evening with DX in DX’s bedroom and was not overtly hostile to him.
(b)The evidence does not establish beyond reasonable doubt that the offender brought any weapon into the unit or knew that the co-offenders had brought weapons with them.
(c)The offender did not physically assault anyone.
(d)DX said that, at one stage, the offender had stopped Mr Kaddour from assaulting him and, at another stage, when Mr Kaddour was assaulting KM, he had told Mr Kaddour to “calm down”. The offender assisted DX in relation to his swollen head by obtaining an ice pack for him.
(e)The offender apologised to TE, saying “I didn’t realise this was your house”. He had not expected to see the two women at the unit.
(f)The offender may have been in DX’s bedroom when MC told the co-offenders to leave.
I accept that, on the facts as they emerged at the trial, the offender’s role was significantly less culpable than that of the co-offenders.
Subjective features
The offender is 27 years old. At the time of the offences, he was 25 years old.
The offender has a number of convictions for relatively minor matters, including driving offences. Relevantly, in 2011, he committed an offence of recklessly inflicting grievous bodily harm. He received a sentence of 10 months’ imprisonment, seven months to be served by periodic detention and three months to be suspended. In 2014, he breached the associated good behaviour order and was resentenced to 10 months’ imprisonment, effectively suspended after he had served three months’ imprisonment. In 2015, he committed an offence of affray for which he received a 12-month good behaviour order. I am informed that both offences were committed at night and in the company of others.
The offender’s criminal history means that he is disentitled to leniency on that account and informs sentencing purposes, including personal deterrence.
The offender was born in New Zealand and was the second of four children. His parents separated when he was young, and he relocated to Australia with his mother and siblings. Because of his mother’s substance abuse and associated neglect, he had an “unstable” upbringing, which included stints in foster care.
The nature of his upbringing meant that the offender moved between several schools. He left school in Year 9 or Year 10, but later completed Year 11. He has certificates in construction, security operation, first aid, and the responsible service of alcohol.
In recent years, the offender has been employed in the concreting industry. The offender tendered a letter from Mr Twigg, who confirmed that the offender has recently been employed as a leading hand concreter. He described the offender as hardworking, reliable, and a good manager. The offender’s job remains open.
The offender’s sister-in-law described him as a respectful, kind, and supportive person who did not usually act violently or aggressively.
In prison, the offender’s behaviour has been “positive”.
The offender told the author of the pre-sentence report that, while he had some anti-social friends, he also had pro-social friends whom he had met through gym training and playing in an Oztag team. Further, he had regular interaction with family members, aunties and a brother, who reside in Canberra.
The offender has a five-month-old son from a previous relationship, and he remains in contact with the child’s mother. He hopes to have a relationship with the child and become a positive role model for him.
The offender admits to social use of cannabis and alcohol. He stated that, on the day of the offence, he had consumed alcohol, Xanax, and cannabis. Urinalysis tests taken while he has been in custody over the last two years have revealed the presence of other illicit substances, including benzodiazepine, cocaine, and methylamphetamine. The author of the pre-sentence report noted that, having regard to these results, the offender “may have ongoing issues with substance use which he has not addressed”.
The author of the pre-sentence report assessed the offender as at a medium risk of general reoffending, primarily because of his criminal history, ongoing use of illicit substances, criminal associations, and antisocial attitudes. On the other hand, his rehabilitation is supported by the presence of employment opportunity, family support, and prosocial leisure activities.
The Crown accepted that the offender had a disadvantaged background and the effects of childhood disadvantage may not diminish with the passage of time: Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [44].
The co-offenders and parity
The co-offenders, Mr Butkovic and Mr Kaddour, each pleaded guilty to one count of common assault (maximum penalty two years’ imprisonment) and one count of possessing an offensive weapon with intent (maximum penalty 12 months’ imprisonment). The pleas were entered on the fourth day of the trial and they reflected a negotiated outcome.
The co-offenders were sentenced on the basis that, at about 1 AM on 5 November 2019, together with the offender, they attended the unit for the purpose of seeing KM. After they entered, there was an altercation, during which Mr Butkovic struck DX and Mr Kaddour struck KM. Mr Butkovic picked up a gold baton and Mr Kaddour picked up a black folding knife. MC told them to leave but they did not do so. TE climbed out of the bedroom window and spoke to a neighbour, who called police. In other words, each of the co-offenders was sentenced for delivering one punch and picking up one offensive weapon.
The general facts on which the offender is to be sentenced are significantly more serious. They include the repeated use of offensive weapons by the co-offenders, repeated verbal threats, and repeated punching by Mr Kaddour, and they evidence a more prolonged and violent incident than that described by Loukas-Karlsson J in her reasons for sentence of the co-offenders. Indeed, while her Honour observed that the objective seriousness of the offences for which she sentenced the co-offenders was above the lowest range, her Honour said that that was primarily because the offences had occurred in a residence.
Each of the co-offenders had spent 11 days in custody. At the time of the offences, Mr Kaddour was 24 years old and had work prospects. He was serving a partially suspended sentence for assault occasioning actual bodily harm. Mr Butkovic was 27 years old, had a criminal history for minor drug and driving matters, and had work prospects.
Each co-offender received a sentencing discount, although it is not clear to me as to how that affected the ultimate result. Mr Butkovic was sentenced to an 18-month good behaviour order for the common assault offence and a 10-month good behaviour order for possessing an offensive weapon with intent. Mr Kaddour was sentenced to a 24-month good behaviour order for the common assault offence and an 18-month good behaviour order for possessing an offensive weapon with intent.
The co-offenders were sentenced for quite different offences that carried much lower maximum available penalties. They were sentenced for discrete and relatively minor acts, and on the basis of substantially less serious general facts. On the other hand, on the facts established at the trial, the offender’s role was less than that of the co-offenders, who used weapons and committed acts of violence. The subjective circumstances of the co-offenders were similar to those of the offender, except that Mr Kaddour was on conditional liberty in the community, an aggravating feature.
In Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 (Green) at [28], the plurality referred to a passage in Wong v The Queen [2001] HCA 64; 207 CLR 584. The majority in that case stated (at [65]):
Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect.
(emphasis original)
The plurality in Green continued:
Consistency in the punishment of offences against the criminal law is "a reflection of the notion of equal justice" and "is a fundamental element in any rational and fair system of criminal justice". It finds expression in the "parity principle" which requires that like offenders should be treated in a like manner. As with the norm of "equal justice", which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances.
(citations omitted)
The parity principle applies even where participants in a criminal enterprise are charged with different offences. However, the greater the differences between the crimes, the greater the practical difficulties in applying the principle: Green at [30], Wan v The Queen [2017] NSWCCA 261 at [41]. In Green at [30], the plurality said:
The foundation of the parity principle in the norm of equality before the law requires that its application be governed by consideration of substance rather than form. Formal identity of charges against the offenders whose sentences are compared is not a necessary condition of its application. Nevertheless, … there can be significant practical difficulties in comparing the sentences of participants in the same criminal enterprise who have been charged with different crimes. The greater the difference between the crimes, the greater the practical difficulties, particularly where disparity is said to arise out of a sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the appellant. … Those practical difficulties and limitations, however, do not exclude the operation of the parity principle. The effect given to it may vary according to the circumstances of the case, including differences between the offences with which co-offenders are charged.
In R v Hiron [2018] NSWCCA 10, the offender appealed against a sentence of six years and three months’ imprisonment with a nonparole period of four years and eight months’ imprisonment. The sentence was imposed for an offence of assault with intent to rob while armed causing wounding, which carried a maximum penalty of 25 years’ imprisonment and a standard nonparole period of seven years’ imprisonment. The co-offender had been sentenced for recklessly wounding while in company to two years’ imprisonment (after a 20 per cent discount) to be served by an intensive correction order. The maximum penalty for the offence of recklessly wounding was 10 years’ imprisonment and a standard nonparole period of four years applied.
The Court of Criminal Appeal agreed with the sentencing judge’s observation that there were differences between the offences for which each was to be sentenced, their objective roles, and their subjective circumstances: at [54]. The Court found that the differences between the sentences reflected an “entirely explicable” exercise of the sentencing discretion: at [59]. The applicant had failed to establish a claim “of an objective legitimate sense of grievance arising from the sentence imposed upon [the co-offender]” (emphasis added).
Taking into account the above considerations relating to the parity principle, I will impose a sentence and nonparole period that I consider to be appropriate to the objective criminality of the offence of aggravated burglary and the offender’s subjective circumstances, but which is slightly lower than that which I would have imposed, but for considerations of parity.
Comparable cases
In R v Lau; R v Lutze [2019] ACTSC 353, the offenders were found guilty and convicted of aggravated burglary by joint commission and aggravated robbery by joint commission. They had entered a residence and taken an amplifier. The complainant and his partner were present at the time of the offence. The complainant confronted the offenders and there was a struggle for the amplifier, during which Mr Lutze held a screwdriver to the complainant’s side. Burns J characterised the offence of aggravated burglary as in the lower range of objective seriousness. Mr Lau had a more extensive criminal history than Mr Lutze. For the offence of aggravated burglary, Mr Lutze was sentenced to two years’ imprisonment and Mr Lau was sentenced to two years and six months’ imprisonment: see R v Lau [2020] ACTSC 120, R v Lutze [2020] ACTSC 121.
In R v Keir [2016] ACTSC 266, after a trial by jury, Refshauge J sentenced the offender to 18 months’ imprisonment for an offence of aggravated burglary. The offender and two co-offenders forced entry to the complainant’s residence to question him about a debt. A co-offender threatened the complainant with an axe and made demands. There was no actual violence. The offender had a long but relatively minor criminal history.
In R v Hanrahan [2020] ACTSC 10, the offender and three co-offenders broke into the complainant’s residence and demanded money allegedly owed because of a drug debt. There was a scuffle and the complainant sustained minor injuries. The offender had a minor criminal history and was sentenced to 18 months’ imprisonment, reduced from 24 months’ imprisonment for the plea of guilty.
Each of the above cases involved facts of less objective seriousness than those in the present case.
I am aware of the significant limitations of sentencing statistics. The fact that the subject offence was an offence of joint commission creates a further difficulty in relation to the relevance of sentencing statistics. However, I note that between July 2012 and February 2019, offences of aggravated burglary frequently resulted in sentences of between 18 months’ and three years and six months’ imprisonment, consistent with the sentences referred to above. In most cases, the sentence followed a plea of guilty and presumably reflected a sentencing discount.
Other sentencing considerations
In sentencing the offender, I am required to have regard to the factors in s 33 of the Crimes (Sentencing) Act 2005 (ACT) insofar as they are known and relevant. I have referred to the relevant factors above.
The relevant s 7 sentencing purposes are general deterrence, personal deterrence, protection of the community, accountability, denunciation, and recognition of harm to the victims.
Although neither the pre-sentence report nor the submissions have canvassed the issue of rehabilitation to any significant extent, I am satisfied that there is a reasonable prospect of rehabilitation. The offender is relatively young, and he is supported by family and the availability of employment. Previously, he has spent no significant period in custody. Consequently, the sentence that I impose may have a salutary effect.
I am also aware that during the COVID-19 pandemic, conditions in prison are more difficult than normal. In particular, prison visits are severely limited and must—in large part, if not completely—be conducted by remote means. These considerations will be reflected in the nonparole period that I impose.
Having regard to the objective seriousness of the offence, I am satisfied that the only appropriate sentence is a sentence of imprisonment.
Sentence
The offender is sentenced to two years and four months’ imprisonment from 29 June 2020 to 28 October 2022.
I fix a nonparole period of one year and two months’ imprisonment, from 29 June 2020 to 28 August 2021.
| I certify that the preceding sixty-eight [68] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: |
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