Citation: R v Irwin, Dean [No.2] [2010] NSWDC 266
Court: District Court of New South Wales
Date: 17 September 2010
Judge(s): Nicholson SC DCJ
Background
The offender, a 20-year-old male, had previously been sentenced for two aggravated break and enter offences. On 18 September 2009, after completing a structured bail program that included residential drug rehabilitation, psychological counselling, employment, and regular court reporting, he received two suspended sentences under s.12 of the Crimes (Sentencing Procedure) Act 1999. The sentencing judge described the outcome as a "feel good moment" and expressed genuine confidence in the offender's rehabilitation prospects.
Just twelve days later, the offender attended the Bondi Golf and Diggers Club, armed with a silver replica pistol and wearing a hood and face covering. He approached a lone female staff member, pointed the weapon at her, and compelled her to empty two cash registers into a bag, taking approximately $5,700. He was significantly intoxicated at the time. Four patrons gave chase but he escaped to a nearby unit. He refused to surrender to police when contacted by phone.
The matter returned to the District Court for sentencing on the robbery charge and for determination of whether the two s.12 suspended sentence bonds should be revoked. The offender's background included a troubled childhood, disrupted schooling and employment, an incomplete apprenticeship, and a serious history of alcohol and drug misuse, which the court found he had minimised.
Legal Issues
- What was the appropriate sentence for the offence of robbery whilst armed with an offensive weapon, taking into account both objective criminality and the offender's subjective circumstances?
- Whether the two existing s.12 suspended sentence bonds should be revoked, given the new offending while subject to those bonds?
- Whether special circumstances existed justifying a departure from the standard non-parole period ratio?
- What discount, if any, applied for the offender's utilitarian guilty plea?
- Whether referral to the Drug Court for a compulsory drug treatment program was appropriate?
Decision
The court assessed the objective gravity of the robbery as serious. The offence involved premeditation, the use of a replica firearm pointed directly at a lone female victim, the theft of a substantial sum, and intimidation of patrons present in the club. The court noted that the offender's apologies to both the victim and bystanders during the robbery, along with his claimed motive of unpaid wages, did not materially reduce the seriousness of the conduct.
On the subjective side, the court acknowledged the offender's youth, his difficult upbringing, his history of substance dependency, and the fact that alcohol played a significant role in the offending. However, the court was critical of his minimisation of his substance abuse problems and noted that his failure to maintain sobriety after what had appeared to be a successful rehabilitation program was a significant aggravating feature in the context of the suspended sentences.
The court set a headline sentence of four years for the robbery, reduced by 25 percent to three years to reflect the utilitarian value of the guilty plea. The non-parole period was set at 18 months, with a balance of term of 18 months. Special circumstances were not expressly found but the sentence structure reflects the court's concern for supervision and rehabilitation on release. Both s.12 bonds were revoked and the suspended sentences were activated, with time already served taken into account in setting the respective non-parole periods.
The court referred the offender to the Drug Court for consideration of inclusion in the Compulsory Drug Treatment Program, expressing a clear preference that he be accepted. The court directed that, if the Drug Court declined, the papers be referred to the Department of Corrective Services for consideration of placement in the young offenders program.
Orders Made
- Aggravated break and enter with intent (2008/00002697) and aggravated break and enter committing a serious indictable offence (2008/00007964): s.12 bonds revoked; non-parole period of 8 months, balance of term 16 months
- Robbery whilst armed with an offensive weapon (2009/00219339): convicted; non-parole period of 18 months commencing 15 October 2010, balance of term 18 months expiring 14 October 2013
- Papers and remarks on sentence referred to the Registrar of the Drug Court for consideration of a compulsory drug treatment order
- In the event the Drug Court declines, papers referred to the Department of Corrective Services classification committee for consideration of the young offenders program
Key Takeaways
- A 25 percent discount applied to the headline sentence of four years for the armed robbery, reflecting the utilitarian value of the guilty plea and reducing the effective sentence to three years.
- Both suspended sentence bonds were revoked as a matter of course following fresh serious offending committed only 12 days after they were imposed, with time already served taken into account when activating the suspended terms.
- The District Court treated the offending as seriously aggravated by premeditation, the vulnerability of the lone female victim, the use of a replica firearm in a manner calculated to cause fear, and the presence of other patrons.
- Minimisation of substance abuse, despite the availability of prior rehabilitation supports, weighed against the offender at sentencing, even though alcohol dependency remained a relevant mitigating background factor given his age and history.
- Referral to the Drug Court for a compulsory drug treatment program was ordered as the preferred rehabilitative mechanism, with the young offenders program nominated as a fallback if the Drug Court declined to accept the referral.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss.11, 12
Cases:
- Thomson & Houlton [2000] NSWCCA 309
- R v Hearne (2007) 124 ACR 457
- The Queen v Henry (1999) 46 NSWLR 340
- R v Rause (unreported, NSWCCA, 8 August 1992)
- R v Cuthbert [1967] 2 NSWR 329
- R v Rushby [1977] 1 NSWLR 597
- R v Hayes [1984] 1 NSWLR 740