Citation: R v Craig John Drew [2006] NSWDC 190
Court: District Court of New South Wales
Date: 8 December 2006
Judge(s): Nicholson SC DCJ
Background
The offender, a heroin addict, was convicted after trial of three counts of robbery while armed with an offensive weapon and one count of assault with intent to rob while armed with an offensive weapon and causing wounding. The offences occurred over three days in June 2005 and targeted State Transit Authority bus drivers in inner-western Sydney.
On each occasion, the offender boarded an empty bus, produced a knife, and demanded cash from the driver's till. Three robberies were completed, yielding approximately $180, $100, and $120 respectively. On the fourth occasion at Mortlake, the robbery attempt failed during a struggle in which the offender's knife wounded driver Christopher Pasquale, severing his ulnar nerve and causing permanent partial loss of hand function.
The offender had a documented heroin addiction, which his own sentencing submissions identified as the driver of the offending. The court was required to sentence him across all four counts, with the offences attracting standard non-parole period provisions under the Crimes (Sentencing Procedure) Act 1999.
Legal Issues
- What was the objective criminality of the offences, and how did that compare with similar armed robbery offending?
- Whether the standard non-parole period applied to any or all of the offences, and if not, what reasons justified a departure from it.
- What weight should be given to victim impact statements in determining sentence?
- Whether special circumstances existed warranting an adjustment to the ratio of non-parole period to additional term.
- How the sentences across the four counts should be structured, including questions of concurrency and cumulation.
Decision
Nicholson SC DCJ assessed the objective criminality of the robberies as serious. The offender deliberately targeted a vulnerable category of worker, used a knife as a threatening implement, wore disguise to avoid identification, and struck repeatedly over a short period. The wounding of Pasquale, although not premeditated, resulted in lasting physical and psychological harm, including a 16 per cent permanent upper limb dysfunction. The harm to the robbery victims, including one driver who could no longer work in his former role due to stress, was described as dire.
The sentencing judge addressed the standard non-parole period framework and set out reasons either for its application or departure, consistent with the obligation under the Crimes (Sentencing Procedure) Act 1999. The court considered the offender's drug addiction as relevant background but not as a mitigating factor that substantially reduced moral culpability, given that the offending was a direct and sustained response to that addiction rather than an isolated lapse.
On victim impact statements, the court acknowledged the significant documented harm to both Pasquale and Baraclough, treating those statements as relevant to the court's understanding of the full consequences of the offending. The statements were not used to inflate the sentences beyond what the objective criminality warranted, but they informed the court's overall assessment.
Special circumstances were found to exist, supporting an extended additional term beyond the statutory one-third ratio. The judge noted the offender's long-term unemployment, serious drug dependency, and the need for supervised rehabilitation in the community, concluding that these factors were better addressed through extended parole supervision than by way of imprisonment alone.
Orders Made
- Counts 1, 2 and 4 (robbery being armed with an offensive weapon): Convicted and sentenced to a non-parole period of 3 years, commencing 18 June 2005 and expiring 17 June 2008, with an additional term of 1 year expiring 17 June 2009.
- Count 3 (assault with intent to rob being armed with an offensive weapon, with wounding at Mortlake): Convicted and sentenced to a non-parole period of 4 years, commencing 18 June 2006 and expiring 17 June 2010, with an additional term of 2 years expiring 17 June 2011.
- The court noted the offender would not receive automatic parole, as the minimum sentence exceeded three years; release would be determined by the Serious Offenders Review Council.
- Earliest possible release date: 17 June 2010.
(Note: The matter was subject to a Crown appeal to the Court of Criminal Appeal at the time of judgment.)
Key Takeaways
- The District Court confirmed that assessing objective criminality requires comparing the offender's conduct against similar offending, and that sustained predatory conduct targeting vulnerable workers across multiple incidents will be treated seriously even where individual amounts stolen are relatively modest.
- Victim impact statements played a legitimate role in illustrating the full consequences of the offending, including lasting physical injury and psychiatric harm, without being used to set sentences beyond what objective criminality warranted.
- Drug addiction, while relevant to background and rehabilitation prospects, did not substantially reduce moral culpability where the offending was a repeated and deliberate response to the addiction rather than an aberrant episode.
- Special circumstances were established on the basis of the offender's long-term unemployment, entrenched drug dependency, and the rehabilitative inadequacy of the prison environment, justifying an additional term longer than the standard one-third ratio.
- Rehabilitation prospects, even where uncertain, remain a relevant consideration at sentencing, with the court acknowledging that community-based supervision may better address drug dependency than custodial environments.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases
- R v Gladue [1990] 1 SCR 688
- R v Cuthbert [1967] 2 NSWR 329
- R v Rushby [1977] 1 NSWLR 594
- R v Hayes [1984] 1 NSWLR 740
- R v Rause (Unreported, NSWCCA, 8 August 1992)
- R v Buttworth [1983] 1 NSWLR 658
- R v Henry (1999) 46 NSWLR 346