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District Court 18 September 2015

R v Sharpley

[2015] NSWDC 371

Assault & violenceTheft & property
CRIMINAL LAW SENTENCE ROBBERY IN COMPANY

Citation: R v Sharpley [2015] NSWDC 371
Court: District Court of New South Wales
Date: 18 September 2015
Judge(s): Berman SC DCJ

Background

The offender, a 23-year-old man with a history of personal disadvantage, appeared for sentencing on a charge of robbery in company. The offence carried a maximum penalty of 20 years imprisonment. He had been held in custody on a bail-refused basis from 15 July 2014.

The offence arose from an incident at 1:30am in Waterloo. A taxi driver, who had initially picked up two passengers, stopped when the group encountered three more people, including the offender. When the driver reasonably refused to carry five passengers, a group member named Ms Link-Hickey instigated a violent confrontation. The offender joined in, punching the driver once to the face and participating in stealing approximately $20 to $30 in coins and an EFTPOS machine.

The offender entered a plea of guilty at the earliest opportunity. He had no prior custodial sentences, though he did have a criminal history involving offences of violence. His background included domestic violence during childhood, early school leaving, near-illiteracy, significant drug and alcohol use, possible psychiatric illness involving psychotic symptoms, and a hearing impairment.

  • What weight should personal disadvantage and reduced moral culpability carry when sentencing for a serious violent offence?
  • How should the court balance specific deterrence against the offender's prospects for rehabilitation?
  • What discount applied for the offender's early guilty plea?
  • Whether special circumstances existed justifying a longer than usual parole period relative to the non-parole period.
  • How much weight could be placed on a co-offender's sentence in the Children's Court for the purposes of parity?

Decision

Berman SC DCJ began by emphasising that sentencing requires consideration of both the offence and the individual offender. The judge accepted that the offender's background, including domestic violence, early drug exposure, possible psychiatric illness, and hearing impairment, reduced his moral culpability. Consistent with the principles in Bugmy v The Queen and R v Fernando, the court took these disadvantages into account without treating them as a complete answer to the seriousness of the conduct.

The court found that general deterrence was not of prime importance given the offender's circumstances, but that specific deterrence was significant given his history of violent offending. His decision to join in the robbery, while not as a ringleader, was nonetheless voluntary. The court observed that Ms Link-Hickey appeared to bear primary responsibility for inciting the group.

Turning to parity, the court addressed the fact that one co-offender had been placed on a 12-month good behaviour bond in the Children's Court. The judge found this comparison carried little weight. The sentencing principles applicable in the Children's Court differ substantially from those in the District Court, and no information was available about the factual basis or subjective circumstances of that co-offender's sentence.

Special circumstances were found to exist. This was the offender's first time in custody, he suffered from a possible psychiatric illness and depression, and he had a hearing impairment that made custody harder. The judge concluded that a longer parole period was in the community's interest to allow adequate supervision and support upon release. A 25 percent discount was applied to reflect the utilitarian value of the early guilty plea.

Orders Made

  • Head sentence of 30 months imprisonment, commencing 15 July 2014.
  • Non-parole period of 15 months, expiring 14 October 2015, on which date the offender was to be released to parole.
  • Conditions of parole: close supervision by the Probation and Parole Service, compliance with all reasonable requirements, and abstention from all illegal drugs including cannabis.

Key Takeaways

  • The District Court applied Bugmy v The Queen and R v Fernando to reduce the offender's assessed moral culpability, recognising that childhood disadvantage, drug dependency, and possible psychiatric illness are relevant to how a court weighs an offender's decision-making capacity.
  • A 25 percent sentencing discount was applied for a guilty plea entered at the earliest opportunity, consistent with the utilitarian value principle referenced in the Henry guideline judgment.
  • Where a co-offender was sentenced in the Children's Court with no available information about the factual basis or subjective circumstances of that outcome, the parity principle carried minimal practical weight.
  • Special circumstances were established by the combination of a first custodial experience, possible psychotic illness, depression, and hearing impairment, justifying a parole period that exceeded the one-third standard proportion of the head sentence.
  • In assessing the gravity of the robbery, the court noted the absence of a dangerous weapon, the unplanned nature of the offence, and the offender's role as a follower rather than instigator as factors distinguishing the case from the standard robbery scenario described in R v Henry.

Legislation and Cases Referenced

Cases:
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- R v Fernando (1992) 76 A Crim R 58
- R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R 149

Legislation: No specific legislation was cited in the judgment text.