R v Malupo [2021] NSWDC 586

R v Malupo [2021] NSWDC 586

The court held that the aggravated assault with intent to rob and reckless infliction of actual bodily harm in company was in the mid-range of objective seriousness because the offender and co-offender followed a victim who had withdrawn cash, confronted him on an empty late-night train platform, the co-offender used a steel claw hammer to strike the victim to the head, and the offender participated in a joint criminal enterprise. The offender's early guilty plea, remorse, youth, difficult background and harsh COVID-19 custody mitigated sentence, but offending in company, conditional liberty, limited but relevant criminal history, and the need for general and specific deterrence required...

Jurisdiction
Australia
Judgment Date
29 October 2021
Procedural Posture
Criminal Sentence / Sentence Hearing After Guilty Plea
Outcome
Full-time custodial sentence imposed; offender convicted of the s 95(1) offence; aggregate sentence imposed for breach matters; Form 1 matter taken into account.
Legal Topics
['aggravated Assault With Intent to Rob' 'recklessly Inflict Actual Bodily Harm in Company' 'resist Arrest' 'form 1 Matters' 'breach of Community Correction Orders' 'objective Seriousness' 'special Circumstances' 'covid 19 Custodial Hardship']
['criminal Law' 'sentencing'] ['aggravated Assault With Intent to Rob' 'recklessly Inflict Actual Bodily Harm in Company' 'resist Arrest' 'form 1 Matters' 'breach of Community Correction Orders' 'objective Seriousness' 'special Circumstances' 'covid 19 Custodial Hardship']

Case Brief

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Procedural Posture

Criminal Sentence / Sentence Hearing After Guilty Plea

Legal Issues

  1. 1 ['What sentence should be imposed for aggravated assault with intent to rob and recklessly inflict actual bodily harm in company pursuant to s 95(1) of the Crimes Act 1900.' 'How the Form 1 offence of resist arrest pursuant to s 58 of the Crimes Act 1900 should be taken into account on sentence.' "Whether the offender's prior community correction orders should be called up and what sentence should be imposed for the breach matters." 'Whether the offending fell within the mid-range of objective seriousness.' 'Whether aggravating factors including offending in company, conditional liberty and criminal antecedents applied, and whether mitigating factors including the guilty plea, remorse, youth, background and COVID-19 custodial hardship applied.' 'Whether special circumstances justified varying the statutory ratio between the head sentence and non-parole period.']

Ratio Decidendi

The court held that the aggravated assault with intent to rob and reckless infliction of actual bodily harm in company was in the mid-range of objective seriousness because the offender and co-offender followed a victim who had withdrawn cash, confronted him on an empty late-night train platform, the co-offender used a steel claw hammer to strike the victim to the head, and the offender participated in a joint criminal enterprise. The offender's early guilty plea, remorse, youth, difficult background and harsh COVID-19 custody mitigated sentence, but offending in company, conditional liberty, limited but relevant criminal history, and the need for general and specific deterrence required...

Court Disposition

Full-time custodial sentence imposed; offender convicted of the s 95(1) offence; aggregate sentence imposed for breach matters; Form 1 matter taken into account.

Orders

  • ['In respect of the four breach of bond matters for which you have been called up for sentence, I impose an aggregate sentence of six months imprisonment to commence on 10 November 2020 and to expire on 9 May 2021.' 'You are convicted of the offence of aggravated assault with intent to rob and recklessly inflict...