Citation: R v Sbrugnera [2009] NSWDC 320
Court: NSW District Court
Date: 5 November 2009
Judge(s): Berman SC DCJ
Background
On 25 February 2009, the offender committed two separate robberies in quick succession. In the first, he entered a Subway store in the early morning, leapt over the counter, threatened a young woman working alone, and took $300 from the till. In the second, later that same day, he reached over a young male employee's shoulder at an Aldi store to grab cash from the register, then punched the victim three times in the face when the victim grabbed his wrist, making off with $183.40.
The offender was arrested approximately 90 minutes after the second robbery at a nearby hotel, sitting at a poker machine. The $100 note taken from the Aldi store was inside the machine. The court observed that it was a troubling reality that serious offences of violence had been committed apparently to fund gambling.
The offender was a young man with a significant criminal history dating back to age 13, who had spent much of his life in custody. He was on parole at the time of the offences, having been convicted of a previous offence involving violence against a Juvenile Justice worker.
Legal Issues
- What sentences were appropriate for the offences of robbery and aggravated robbery, having regard to objective seriousness, the offender's personal circumstances, and relevant sentencing principles?
- What weight should be given to mitigating factors, including the early guilty pleas and the offender's background?
- Whether special circumstances existed to justify varying the standard ratio of non-parole period to head sentence.
- How to treat the commencement date of the sentences, given the offender's parole revocation and time already spent in custody.
Decision
The court assessed both offences as serious. The first robbery targeted a young woman working alone, which the court described as cowardly. The second offence constituted aggravated robbery because the offender used physical violence against a seated male employee who was in no position to defend himself. The court noted that victims of robbery typically bear lasting psychological consequences, a consideration it factored into the sentences imposed.
The offender's early guilty pleas attracted a 25 per cent discount on the sentences that would otherwise have been imposed. However, the mitigating effect of his background, including an unstable upbringing, exposure to negative peer influences, and apparent drug use at the time of the first offence, was limited. The court declined to treat drug intoxication as a mitigating factor and found that the offender's extensive history of anti-social and criminal conduct made good prospects of rehabilitation very difficult to identify.
The court found special circumstances, primarily because the sentences would be cumulative on other existing sentences and because of the offender's age and the continuing (though uncertain) possibility of rehabilitation. That finding allowed a greater than usual proportion of the sentence to be allocated to parole. However, the court noted a countervailing consideration: the offender had squandered his earlier parole, returning to offending rather than complying with his parole conditions.
On the question of commencement date, the court declined to backdate the sentences to 25 February 2009, instead commencing them from the date of sentencing, 5 November 2009. The court acknowledged this produced a longer overall period in custody but considered it appropriate given the circumstances of the parole revocation.
Orders Made
- For the offence of robbery: a fixed term of 18 months imprisonment, commencing 5 November 2009.
- For the offence of aggravated robbery (taking into account two matters on the Form 1, being larceny and goods in custody): imprisonment with a non-parole period of one year commencing 5 November 2010 and an overall term of three years.
- The effective total sentence is four years imprisonment with a non-parole period of two years, with the offender eligible for release to parole on 4 November 2011.
Key Takeaways
- The District Court confirmed that the psychological impact on victims of robbery is a relevant and weighty consideration in determining the appropriate sentence, not merely the financial loss involved.
- Drug intoxication at the time of offending was treated as neither mitigating nor aggravating; it did not reduce the sentences that would otherwise have been imposed.
- A 25 per cent discount applied to reflect early guilty pleas, consistent with established sentencing practice for timely pleas in the District Court.
- Special circumstances were found, justifying an extended parole period relative to the head sentence, but the court tempered this in light of the offender's prior failure to comply with parole conditions.
- Where an offender is on parole and parole is revoked for reasons separate from the new offences, the commencement of fresh sentences is not automatically backdated to the date of the new offending; the sentencing court retains discretion as to the commencement date.
Legislation and Cases Referenced
Legislation
- No specific legislation cited in the judgment text.
Cases
- No cases cited in the judgment text.
Note: The Form 1 procedure referenced in the judgment is a mechanism under NSW criminal procedure by which an offender may ask the court to take additional offences into account on a Form 1 when passing sentence, without those offences being subject to separate conviction and sentence.