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District Court 23 November 2012

R v Matthew MOORE

[2012] NSWDC 295

Assault & violenceTheft & property
CRIMINAL LAW PARTICULAR OFFENCE ROBBERY IN COMPANY VULNERABLE VICTIMS TWO 15 YEAR OLD BOYS AT TRAIN STATION OFFENDER CARRYING BASEBALL BAT

Citation: R v Matthew Moore [2012] NSWDC 295
Court: District Court of New South Wales
Date: 23 November 2012
Judge: Cogswell SC DCJ

Background

The offender, a 20-year-old man with a prior criminal history, pleaded guilty to robbery in company and a related common assault arising from an incident at Kingswood Railway Station on 18 February 2012. On that evening, he and an associate approached two 15-year-old boys on a train platform. The associate carried a baseball bat, which was passed to the offender during the confrontation.

The offender demanded money and property from the two boys. One victim was forced onto the train tracks to retrieve a mobile phone that had bounced off the platform. That boy was unable to climb back up from the tracks and had to cross to another platform to find a ladder. Both victims described significant fear during the incident, and one reported ongoing flashbacks.

The offender had been drinking wine and using amphetamines at the time. He was arrested several months later and made full and frank admissions to police, acknowledging his intoxication and his role in the offence.

  • What was the appropriate sentence for robbery in company, having regard to the objective seriousness of the offence and the offender's personal circumstances?
  • What weight should be given to the offender's guilty plea, admissions to police, and expressions of remorse?
  • How should the offender's psychotic illness and substance addiction affect the assessment of moral culpability and the purposes of sentencing?
  • Whether special circumstances existed justifying a departure from the standard non-parole period ratio under the Crimes (Sentencing Procedure) Act 1999.
  • How should the related common assault be dealt with?

Decision

Cogswell SC DCJ assessed the robbery in company as falling in the middle of the range of objective seriousness. The use of a baseball bat, the vulnerability of the 15-year-old victims, and the particularly dangerous act of forcing one boy onto the train tracks were all significant aggravating features. The judge drew on R v Henry (1999) and found that most of the Henry factors relevant to armed robbery in company were present.

The offender's prior record, which included two aggravated robberies dealt with in the Children's Court, was a significant sentencing consideration. Those earlier offences involved sustained violence against vulnerable victims. The prior record removed any claim to leniency on the basis of good character and warranted greater emphasis on specific deterrence.

The offender's psychotic illness, which was active at the time of the offence, was taken into account as a mitigating factor in the sense that it made full-time custody weigh more heavily and rendered the offender an inappropriate vehicle for general deterrence. However, the judge made clear that his drug and alcohol addiction did not reduce his moral culpability, given that he was aware of the effect that combining drugs and alcohol had on his behaviour. The judge accepted genuine remorse, demonstrated through frank admissions to police, early guilty plea, and acknowledgments in the pre-sentence report.

Special circumstances were found, justifying a greater than usual proportion of the sentence being served on parole. The reasons included the offender's young age, this being his first time in adult custody, and the need for an extended period of residential rehabilitation to address both his addiction and mental health condition. The related common assault was dealt with as a related offence and resulted in a good behaviour bond.

Orders Made

  • Imprisonment for robbery in company, with a non-parole period reflecting the finding of special circumstances (the precise term lengths are not reproduced in the available text).
  • A 25% discount applied to the sentence for the early guilty plea.
  • A three-month good behaviour bond imposed for the related common assault under s 166 of the Criminal Procedure Act 1986.

Key Takeaways

  • The District Court confirmed that awareness of the disinhibiting effects of combining drugs and alcohol does not reduce an offender's moral culpability, even where a psychotic illness was also present at the time of the offence.
  • A prior record of similar violent offending, even where dealt with in the Children's Court, can properly be used to increase the emphasis on specific deterrence and to deny any discount for good character.
  • Where an offender suffers from psychotic illness, that condition may make full-time custody weigh more heavily and may diminish the relevance of general deterrence as a sentencing purpose, but it does not operate as a blanket mitigating factor.
  • Special circumstances under the Crimes (Sentencing Procedure) Act 1999 were established by the combination of the offender's young age, his first period in adult custody, and the identified need for a prolonged and structured rehabilitation program.
  • An early guilty plea, frank admissions to police, and acknowledgment of fault in a pre-sentence report can each contribute to a finding of genuine remorse, supporting a 25% discount and other mitigating weight in sentencing.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), s 166(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 50

Cases:
- R v Henry (1999) 46 NSWLR 346
- R v Hemsley [2004] NSWCCA 228