Citation: R v Faiva PECKHAM [2010] NSWDC 163
Court: District Court of New South Wales
Date: 29 March 2010
Judge(s): Cogswell SC DCJ
Background
On the night of 2 May 2009, the offender, a 23-year-old Aboriginal man, committed two offences on a train travelling to Seven Hills. He aggressively demanded money from one passenger, implicitly threatening violence, and then robbed a second passenger by threatening to produce a knife. The second victim handed over his wallet, mobile phone, and keys. Transit Police attended and the offender fled onto the train tracks, creating a dangerous situation for one officer.
The offender was arrested six days later. He had a prior criminal record as an adult, including convictions for assault and breaching Apprehended Violence Orders, and two prior terms of imprisonment, though no prior convictions for robbery or demanding money with menaces. Critically, he committed these offences while on parole, under conditions that included addressing an alcohol problem.
Reports before the court from the Probation and Parole Service and a forensic psychologist painted a consistent picture: a difficult upbringing on an Aboriginal mission and in Mount Druitt, exposure to domestic violence, drugs, and alcohol from childhood, and serious ongoing substance abuse issues involving alcohol, cannabis, amphetamines, and ice.
Legal Issues
- What sentences were appropriate for robbery (under s 94 of the Crimes Act 1900) and demanding money with menaces (under s 99(1)) given the objective seriousness of the offences and the offender's personal circumstances?
- What weight should be given to the offender's Aboriginal background and the principles from R v Fernando (1992)?
- What weight should be attached to the early guilty plea, the spontaneous nature of the offending, and the offender's drug and alcohol problems?
- Whether the offender was suitable for referral to the Drug Court for consideration of a Compulsory Drug Treatment Order.
- What sentence was appropriate for the related offence of escape from police custody, dealt with as a s 166 matter?
Decision
The court treated the offences as serious. They were committed on public transport, involved threats of knife violence, and targeted vulnerable members of the public going about their ordinary lives. The fact that the offender was on parole at the time was a significant aggravating factor, and his prior record, while not including robbery, demonstrated a pattern of offending involving violence.
Mitigating factors received meaningful consideration. The court accepted that the offending was spontaneous and driven by intoxication rather than deliberate planning, drawing a contrast with a sober and premeditated robbery. The offender entered guilty pleas at the earliest opportunity and demonstrated genuine remorse and victim empathy. His difficult upbringing, his Aboriginal background, and the role of substance abuse in his offending were acknowledged, with the court noting the relevance of the Fernando principles while accepting the prosecution's submission that those principles did not add substantially beyond the personal background already before the court.
The forensic psychologist's assessment identified a moderate risk of recidivism, but noted that this risk would be significantly reduced if the offender addressed his substance abuse and undertook anger management. The court acted on this evidence, referring the matter to the Drug Court to determine whether the offender should be subject to a Compulsory Drug Treatment Order under s 50 of the Drug Court Act 1998. The possibility of placement at the Compulsory Drug Treatment Correctional Centre at Parklea was canvassed as potentially beneficial to rehabilitation.
For the escape from custody offence, the court imposed a concurrent sentence of six months, noting that the circumstances of the escape had placed a police officer in genuine danger at a train station.
Orders Made
- Robbery (s 94 Crimes Act 1900): non-parole period of 18 months, balance of term of 12 months.
- Demanding money with menaces (s 99(1) Crimes Act 1900): non-parole period of 15 months, balance of term of 5 months.
- Escape from police custody (s 166 Criminal Procedure Act 1986 certificate): 6 months imprisonment, concurrent, commencing 20 November 2009 and expiring 19 May 2010.
- Offender referred to the Drug Court to determine suitability for a Compulsory Drug Treatment Order under s 50 of the Drug Court Act 1998.
Key Takeaways
- The District Court confirmed that robbery and threatening violence on public transport are treated as serious offences warranting custodial sentences, particularly when the offender is on parole at the time.
- Spontaneous, intoxication-driven offending is distinguishable from premeditated criminal conduct, and the distinction can bear on the weight given to objective seriousness, even where it does not excuse the behaviour.
- Under the Fernando principles, an offender's Aboriginal background and the social disadvantage connected to it are relevant to sentencing, though the court here found those factors did not substantially add to what was already apparent from the personal background material.
- Where psychological evidence identifies substance abuse as a primary driver of offending and a significant risk factor for reoffending, a referral to the Drug Court for consideration of a Compulsory Drug Treatment Order under the Drug Court Act 1998 may be an appropriate sentencing response.
- A concurrent sentence remains available for a related offence dealt with by way of a s 166 certificate, even where the principal sentences are themselves substantial.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 94, 99(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 50
- Criminal Procedure Act 1986 (NSW), s 166
- Drug Court Act 1998 (NSW), s 50
Cases:
- R v Fernando (1992) 76 A Crim R 58