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District Court 5 February 2010

R v Scott BURGE

[2010] NSWDC 16

Assault & violenceTheft & property
CRIMINAL LAW SENTENCE ROBBERY BREAK, ENTER AND STEAL BAG SNATCHING VULNERABLE VICTIMS

Citation: R v Scott BURGE [2010] NSWDC 16
Court: District Court of New South Wales
Date: 5 February 2010
Judge(s): Berman SC DCJ

Background

The offender pleaded guilty to robbery and asked the court to take into account a related offence of break, enter and steal when passing sentence. The robbery occurred on 9 December 2008 near a Centrelink office in Caringbah, when the offender snatched a purse from a 69-year-old woman, causing her to fall and sustain physical injuries. The break, enter and steal offence had been committed earlier, in 2003, and involved the theft of items with significant sentimental value including wedding bands, rings and a football medal.

The offender had a difficult background marked by abandonment, domestic violence, and an almost continuous custodial history from a young age. At the time of sentencing he was living with a supportive partner and had been out of custody for 14 months. He continued to use drugs intermittently and had been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD).

  • What sentence was appropriate for the robbery, having regard to the vulnerability of the victim and the physical and psychological harm caused?
  • How should the prior break, enter and steal offence be taken into account?
  • Whether a discount for an early guilty plea was warranted, and if so, at what level?
  • Whether "special circumstances" existed to justify varying the standard ratio between non-parole period and head sentence (that is, whether the offender's rehabilitation prospects warranted a longer parole period than usual)?
  • Whether the offender's expressed remorse could be accepted in the absence of sworn evidence?

Decision

The court imposed a total sentence of three and a half years' imprisonment, with a non-parole period of two years and seven months commencing 7 January 2010. A 25 per cent discount was applied to reflect the utilitarian value of an early guilty plea, meaning the sentence was reduced from what it would otherwise have been to recognise the benefit to the justice system of avoiding a contested hearing.

In assessing the seriousness of the robbery, the court drew on observations by Gleeson CJ in R v Ranse about the significant breach of the peace represented by bag snatching offences. The court emphasised that targeting elderly pedestrians near a Centrelink office was cowardly, and that the victim's psychological harm, even without direct evidence of it, was an inevitable consequence the court was not prepared to overlook.

Regarding the break, enter and steal matter, the court noted that the theft of items of clear sentimental value, including wedding rings and a 1927 football medal, compounded the harm to victims beyond mere monetary loss. While the offence was some years old, it was treated as a serious matter warranting a significant custodial sentence in its own right.

The court declined to find special circumstances. Despite submissions on the offender's rehabilitation prospects, his ongoing drug use, his custodial history, and his failure to take advantage of previous leniency weighed against any adjustment to the standard non-parole ratio. The court accepted remorse on a limited basis, noting that the offender may not have fully appreciated the victim's age, but observed that little evidence existed to suggest he would not reoffend if faced with similar financial pressures in the future.

Orders Made

  • Sentenced to imprisonment with a non-parole period of two years and seven months, commencing 7 January 2010, and a total sentence of three and a half years (parole eligibility from 29 August 2012).
  • Referred to the Drug Court for assessment as to suitability for a compulsory drug treatment order.

Key Takeaways

  • The District Court confirmed that bag snatching offences targeting elderly pedestrians represent a serious breach of the peace, warranting a clear punitive message from the courts, consistent with principles stated in R v Ranse.
  • Psychological harm to victims of street robbery is a sentencing consideration even where no direct evidence of that harm is placed before the court, where such harm is an inevitable consequence of the offence.
  • A 25 per cent discount applied where a guilty plea was entered at the earliest available opportunity, reflecting the established utilitarian value of early pleas in reducing the burden on the justice system.
  • Where an offender has a lengthy custodial history, has continued to use drugs, and has failed to capitalise on prior leniency, those factors can collectively defeat a claim for special circumstances, even if rehabilitation is raised as a mitigating argument.
  • The sentimental value of stolen property, distinct from its monetary worth, is a recognised aggravating factor in sentencing for property offences such as break, enter and steal.

Legislation and Cases Referenced

Cases:
- R v Ranse (Unreported, Court of Criminal Appeal, 8 August 1994) per Gleeson CJ

Legislation:
No specific legislative provisions were cited in the judgment.