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6
Court of Criminal Appeal 23 January 2006

Bichar v Regina

[2006] NSWCCA 1

DrugsTheft & property
CRIMINAL LAW SENTENCE ARMED ROBBERY WHETHER DRUG ADDICTION MITIGATING WHETHER ANY LESS SENTENCE WARRANTED.

Citation: Bichar v Regina [2006] NSWCCA 1
Court: NSW Court of Criminal Appeal
Date: 23 January 2006
Judge(s): Basten JA, Howie J, Hall J

Background

The appellant pleaded guilty in the Local Court to armed robbery under s 97(1) of the Crimes Act 1900, a charge carrying a maximum of 20 years imprisonment. The offence involved threatening a train passenger with a used syringe while demanding his laptop and bag. Police apprehended the appellant shortly after he left the train at Sefton station.

The appellant had a troubled personal history. He served in the army, developed PTSD after witnessing children killed or injured by landmines in Cambodia and Malaysia, suffered a serious workplace head injury in 1999, and subsequently became dependent on heroin. He had undergone extensive drug treatment, including 13 episodes of detoxification, a methadone programme, and residential rehabilitation, though he left rehabilitation on the day of the offence.

On 4 April 2005, Judge Phegan of the District Court sentenced the appellant to a total term of three years imprisonment, comprising an 18-month non-parole period and an 18-month balance of term, dating from 1 November 2004. The appellant sought leave to appeal on the ground that the sentence was excessive.

  • Whether the sentencing judge erred by failing to apply the Henry guideline discount for the early plea of guilty
  • Whether the appellant's drug addiction constituted a mitigating factor in the circumstances
  • Whether any lesser sentence was warranted in law, having regard to the objective seriousness of the offence and general deterrence

Decision

The Court accepted that the sentencing judge had not expressly applied the Henry guideline discount for the guilty plea, which was a departure from accepted sentencing practice. However, the Court found that this error did not lead to a miscarriage of justice in this case, because the overall sentence was already a lenient one.

On the question of drug addiction, Howie J analysed the principles established in R v Henry and subsequent decisions. While addiction can be relevant in certain circumstances, including where it bears on prospects of rehabilitation or where it was not the product of personal choice, those circumstances did not apply here. The suggestion by the psychologist that the appellant may have used heroin for pain relief lacked factual support, and the appellant himself did not give that evidence. The Court confirmed that self-medication with prohibited drugs to cope with psychological or physical trauma is not a mitigating factor, citing R v SY.

The Court also found that the appellant had made a choice to continue using heroin rather than remain in rehabilitation, having been given numerous opportunities and extensive support over many years. The non-parole period of 18 months was described by Howie J as "extremely generous" and verging on inadequate for the objective seriousness of the offence. No lesser sentence was warranted in law under s 6(3) of the Criminal Appeal Act 1912.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that a failure to expressly apply the Henry guilty plea discount is a sentencing error, but will not result in a reduced sentence where the overall sentence imposed is already at the lenient end of the range.
  • Under the principles in R v Henry, drug addiction may bear on sentencing where it affects rehabilitation prospects, where it was not the product of personal choice, or where the offender stands at a "crossroads," but none of those circumstances was established on the evidence here.
  • Self-medication with prohibited drugs to manage psychological or physical trauma does not constitute a mitigating factor, consistent with the Court of Criminal Appeal's earlier decision in R v SY.
  • A continued choice to use drugs rather than remain in available rehabilitation programmes is relevant to whether addiction should attract mitigatory weight, regardless of the underlying causes of the addiction.
  • In dismissing the appeal, the Court characterised the 18-month non-parole period as verging on inadequate, reinforcing that armed robbery involving the use of a syringe as a weapon is treated as a serious instance of the offence for sentencing purposes.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) s 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(3)
- Criminal Appeal Act 1912 (NSW) s 6(3)

Cases:
- R v Henry (1999) 46 NSWLR 346
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v Hemsley [2004] NSWCCA 228
- R v Sundar [2005] NSWCCA 93
- R v Johnson [2005] NSWCCA 186
- Douar v R [2005] NSWCCA 455
- R v Ibrahimi [2005] NSWCCA 153
- R v Solomon (2005) 153 A Crim R 32
- R v SY [2003] NSWCCA 291
- R v Gagalowicz [2005] NSWCCA 452