Citation: R v West; R v Dimitriyevich [2013] NSWDC 112
Court: District Court of New South Wales
Date: 5 April 2013
Judge: Berman SC DCJ
Background
Two offenders appeared for sentencing following a planned attempted armed robbery at a licensed hotel in Camperdown in the early hours of 30 December 2011. One offender stole a motor vehicle and the two then travelled together to the hotel, having first observed the premises. They entered by force, one using a hammer to break through a glass door, and searched the hotel for cash in front of patrons, though they obtained nothing.
When police arrived, one offender (West) pointed a painted toy pistol at officers on two separate occasions to avoid arrest. Police discharged their firearms twice but did not hit him. He subsequently fled into the grounds of the Chinese consulate (sustaining injuries from razor wire) and was later found hiding in a nearby hospital, where he was arrested.
Both offenders were also subject to existing bonds at the time of the offences. Each had developed a serious drug addiction, and the circumstances of how those addictions arose were central to the sentencing exercise.
Legal Issues
- What sentences were appropriate for attempted robbery in company, use of an offensive weapon to avoid lawful apprehension, and being carried in a stolen conveyance?
- How should drug addiction be weighted as a mitigating factor, particularly where the addiction originated from violent victimisation suffered by the offender?
- What were the consequences of breaches of existing bonds?
- Whether special circumstances existed to justify adjusting the ratio between the non-parole period and the head sentence.
Decision
His Honour noted that drug addiction is ordinarily afforded limited mitigating weight in sentencing because of the element of personal choice in commencing drug use. However, he departed from that usual approach in this case. Both offenders had developed their addictions following serious acts of violence committed against them: one had developed opiate dependence after being treated for gunshot wounds, and the other's substance abuse had significantly increased after being stabbed. Both had also been diagnosed with post-traumatic stress disorder as a result. The court treated this background as weighing substantially in their favour.
His Honour also considered the broader personal circumstances of each offender. One had experienced severe childhood deprivation, including a neglectful and alcoholic mother, exposure to domestic violence, homelessness from a young age, and a long history of institutionalisation. The court acknowledged that such a background substantially reduced the degree to which an informed choice about criminal conduct could be made, while noting that adult offenders must ultimately take responsibility for their own actions.
The court found that the objective criminality of both offenders was broadly comparable in relation to the attempted robbery charge, with one qualification: the evidence indicated that one offender had invited the other to participate, rather than the reverse. The additional offences of using an offensive weapon to resist arrest, entering protected premises, and being carried in a stolen conveyance were dealt with by way of fixed terms structured around the principal sentence.
Special circumstances were found to exist for both offenders. An extended parole period was considered appropriate given the significant criminal histories of both men and the potential benefit of supervision and drug treatment programs. Both offenders were referred to the compulsory drug treatment program at Parklea gaol.
Orders Made
Mr West:
- Section 12 bond from Newtown Local Court revoked; non-parole period of four months imposed for the bond matter, commencing 30 December 2011
- Offence of using an offensive weapon to avoid lawful apprehension: fixed term of two years, commencing 29 February 2012
- Offence of attempted robbery in company: non-parole period of three years and two months commencing 28 February 2013, head sentence of five years; eligible for parole 27 April 2016
- Driving whilst disqualified: fixed term of six months commencing 30 December 2011; disqualification from driving confirmed
- Referred to compulsory drug treatment program at Parklea gaol
Mr Dimitriyevich:
- Being carried in a stolen conveyance: fixed term of six months commencing 30 December 2011
- Offence of attempted robbery in company: non-parole period of three years commencing 29 February 2012, head sentence of five years; eligible for parole 28 February 2015
- Referred to compulsory drug treatment program at Parklea gaol
Key Takeaways
- Drug addiction ordinarily attracts limited mitigating weight in sentencing due to the element of personal choice, but the District Court held that addiction arising from violent victimisation and the resulting treatment or trauma warrants greater mitigation.
- Where an offender's drug dependence developed through post-traumatic stress disorder following a serious physical attack, and not simply through voluntary recreational use, the court treated that circumstance as weighing substantially in the offender's favour at sentence.
- A deprived and violent childhood, including inadequate parenting, domestic violence, and early homelessness, was acknowledged as reducing the degree of informed choice available to an offender, though this does not extinguish adult responsibility.
- Special circumstances justifying an extended parole period were established where both offenders had significant criminal histories and stood to benefit from supervised drug treatment and rehabilitation following their release.
- The compulsory drug treatment program at Parklea gaol was identified as an available and appropriate intervention, and both offenders were referred to it as part of their sentences.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW): offences of attempted robbery in company, use of offensive weapon to avoid lawful apprehension, being carried in a stolen conveyance
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12 (suspended sentence bond)
Cases cited: None identified in the provided text.