Citation: Regina v Kane William Wratten [2007] NSWDC 279
Court: District Court of New South Wales
Date: 29 October 2007
Judge(s): Nicholson SC DCJ
Background
The offender, an eighteen-year-old male at the time of the first offence, used a large serrated breadknife to rob a teenage pizza delivery driver in Albury on 16 July 2005, taking pizzas and between $100 and $120 in cash. Nearly a year later, on 25 June 2006 in Taree, he participated in a second robbery of a pizza delivery person in company with another person, taking pizza and $26.25 in cash.
The offender pleaded guilty before the Local Court to the first robbery while armed with an offensive weapon. He asked the sentencing judge to take the second robbery into account on a Form 1 (a procedure allowing additional offences to be considered at sentencing without the offender being separately convicted and punished for them).
The offender raised a partial duress claim for the first offence, asserting that his father-in-law had threatened him with a sawn-off shotgun and demanded he carry out the robbery. The sentencing judge was required to resolve factual disputes about the circumstances of that offence and to weigh a range of competing sentencing considerations.
Legal Issues
- What were the objective circumstances of the armed robbery, including whether duress operated to reduce the offender's culpability?
- What weight should be given to the offender's difficult personal background, including exposure to violent and alcoholic role models during childhood?
- How should the Form 1 matter (robbery in company) affect the overall sentence?
- What discount, if any, was appropriate for the guilty plea?
- Whether special circumstances existed to justify adjusting the standard ratio of non-parole to head sentence?
- What sentence appropriately balanced community protection, general and specific deterrence, and the offender's genuine rehabilitation prospects?
Decision
Nicholson SC DCJ accepted that the offender had been subjected to threats by his father-in-law before the first robbery, but did not accept the full extent of the duress claim. The victim's statement was preferred over the offender's denial that he had threatened to cut her. The judge found the offence remained seriously objectively criminal, involving a planned deception (a fake pizza order), a large knife, and direct threats to a vulnerable lone worker at night.
The judge gave significant weight to the offender's profoundly dysfunctional upbringing, which had exposed him from childhood to violent, alcoholic, and dangerous adult role models. This background was treated as a genuine mitigating factor bearing on moral culpability, without excusing the conduct. The offender's expressed willingness to rehabilitate was also taken seriously, though the judge acknowledged that rehabilitation prospects could only be assessed uncertainly.
The Form 1 robbery in company was taken into account in setting the overall sentence. A discount was applied for the guilty plea. The judge structured the sentence to give rehabilitation a real opportunity, ultimately imposing a two-year term of imprisonment suspended under a section 12 Good Behaviour Bond, subject to conditions. The sentence was adjourned briefly to confirm that the necessary support and programme resources were available in the offender's regional location before the bond was formally imposed.
Orders Made
- Sentenced to imprisonment for 2 years, suspended pursuant to entry into a section 12 Good Behaviour Bond with conditions.
- Matter adjourned for two weeks (to 9 November 2007 at Penrith District Court) to allow confirmation that required programme resources were available in the offender's country town.
- Bail continued on the condition that the offender engage with the matters identified during the adjournment period.
Key Takeaways
- A sentencing court may treat a seriously dysfunctional upbringing involving violent and alcoholic role models as a mitigating factor going to moral culpability, even where it does not excuse the offending conduct.
- Duress claims require careful factual scrutiny: the District Court here preferred the victim's contemporaneous statement over the offender's evidence, and found that the threat, while real, did not displace significant objective criminality.
- Under the Form 1 procedure, additional offences taken into account at sentencing affect the overall sentence without resulting in a separate conviction or penalty for those offences.
- A two-year sentence of imprisonment may be suspended under a section 12 Good Behaviour Bond where rehabilitation prospects are genuine and the offender is young, even for serious offences involving weapons and direct threats.
- Practical access to support programmes in regional areas is a relevant consideration before formally imposing a suspended sentence with programme-based conditions, as the District Court demonstrated by adjourning to verify resource availability.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12 (Good Behaviour Bonds), s 37
Cases:
- Gladue v Regina [1999] 1 SCR 688
- R v Cuthbert [1967] 2 NSWR 329
- R v Rushby [1977] NSWLR 599
- R v Hayes [1984] 1 NSWLR 740
- R v Rouse (unreported, NSWCCA, 8 August 1992)
- Walden v Hensler (1987) 163 CLR 561
- R v Porter (1933) 55 CLR 182
- R v Henry and Others (1999) 46 NSWLR 340
- Attorney General's Application pursuant to s 37 Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2004) 61 NSWLR 305
- R v Thompson; R v Houlton (2000) 49 NSWLR 383