Citation: R v Coy Gary Saunders [2007] NSWDC 59
Court: District Court of New South Wales
Date: 9 March 2007
Judge(s): Nicholson SC DCJ
Background
Shortly after 12:30am on 26 November 2005, a 20-year-old offender and two companions pushed their way into the Taree Leagues Sports Club after closing time, with the lower halves of their faces covered by clothing. The offender jumped over the bar and moved toward the cash register, while his co-offender approached the TAB cashier's cage. Twelve patrons and four staff members were present on the premises.
Staff members physically intervened to restrain the offender. During a prolonged struggle, he elbowed one staff member in the mouth, bit a second staff member deeply on the arm, and bit a patron on the thigh. He also threatened to stab those restraining him, claiming to have a knife, though no weapon was found when police searched him. Police arrived within minutes and arrested the offenders.
The offender was committed for sentence on four charges: two counts of assault occasioning actual bodily harm (AOABH), one count of attempted robbery in company, and one count of disguising his face with intent to commit an indictable offence.
Legal Issues
- What was the appropriate sentence, having regard to the objective seriousness of the offences and the offender's personal circumstances?
- What weight should be given to the spontaneous and alcohol-affected nature of the offending?
- What role did the offender's progress on bail, including completion of a residential drug and alcohol program, play in the sentencing outcome?
- Whether suspended sentences under s 12 of the Crimes (Sentencing Procedure) Act 1999 were appropriate given the offender's demonstrated rehabilitation.
Decision
His Honour assessed the objective criminality as significant. The attempted robbery in company carries a maximum penalty of 20 years imprisonment, placing it among the more serious offences on the criminal calendar. The presence of many patrons and staff, the disguises, the physical violence, and the threats to stab those restraining the offender all weighed toward seriousness.
However, His Honour accepted that the offending was spontaneous rather than premeditated in any meaningful sense. The plan, such as it was, had been formed moments before while the offender was drinking elsewhere. His Honour accepted that alcohol had materially impaired the offender's judgment and disinhibited him, and that he would not have committed these offences when sober.
The offender's personal circumstances attracted considerable weight. He was Indigenous, had experienced a difficult childhood including paternal violence, had begun using alcohol and cannabis at a very young age, and had a history of juvenile offending. Critically, approximately a year before sentencing, His Honour had granted the offender an opportunity to demonstrate rehabilitation. The offender had completed a residential program at Bennalong Haven, where reports described genuine remorse, negative urine screens, and a motivated attitude toward sobriety and family life.
Giving substantial weight to that demonstrated progress, His Honour imposed sentences of imprisonment but suspended all of them pursuant to s 12 of the Crimes (Sentencing Procedure) Act, on the condition that the offender enter good behaviour bonds and continue under Probation and Parole supervision.
Orders Made
- Two counts of AOABH: six months imprisonment each (fixed term), suspended under s 12 on a six-month good behaviour bond for each.
- Attempted robbery in company: eleven months imprisonment, suspended under s 12 on an eleven-month good behaviour bond.
- Disguising face with intent to commit an indictable offence: six months imprisonment, suspended under s 12.
- All bonds subject to the conditions of accepting Probation and Parole supervision and following all reasonable directions of that service.
- Probation and Parole directed to contact the sentencing judge by report if seeking the offender's release.
- Leave granted to withdraw the back-up charge.
Key Takeaways
- A spontaneous, alcohol-affected decision to commit a serious offence does not eliminate objective criminality, but the District Court accepted it as a meaningful mitigating factor where the offender credibly established that alcohol had impaired his capacity for sensible judgment.
- Attempted robbery in company carries a maximum of 20 years imprisonment and is treated as among the most serious offences, meaning even a spontaneous and unsuccessful attempt attracts significant sentencing weight.
- Demonstrated rehabilitation on pre-sentence bail, including completion of a residential drug and alcohol program with positive reports, can be a decisive factor in favour of a non-custodial outcome even for serious indictable offences.
- Under s 12 of the Crimes (Sentencing Procedure) Act, the District Court suspended all sentences, leaving the prison terms in place as an operative consequence of any bond breach, rather than imposing them immediately.
- The offender's Indigenous background, early exposure to alcohol and cannabis, and difficult family circumstances were treated as relevant contextual factors in assessing moral culpability, consistent with the approach endorsed in Griffiths v The Queen (1977) 137 CLR 293.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12 (suspended sentences)
Cases
- Griffiths v The Queen (1977) 137 CLR 293