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District Court 3 December 2015

R v Buxton

[2015] NSWDC 409

Assault & violenceTheft & propertyPublic order & justice offences
CRIMINAL LAW SENTENCE FORM 1 ARMED ROBBERY BAG SNATCHING OFFENDER ON PAROLE AT TIME OF OFFENCE

Citation: R v Buxton [2015] NSWDC 409
Court: District Court of New South Wales
Date: 3 December 2015
Judge(s): Berman SC DCJ

Background

The offender faced sentencing for one count of armed robbery, with a second offence of assault with intent to rob whilst armed with an offensive weapon taken into account on a Form 1. Both offences arose from the same evening in Newcastle on 25 April 2014, when the offender approached two women walking home and produced a knife approximately 15 to 20 centimetres long, demanding their bags.

One victim fled and screamed for help; the other threw her bag at the offender and also ran. Three bystanders intervened, chased the offender, and recovered the bag intact. The offender was arrested a short time later nearby, after the same bystanders spotted him again from a hotel balcony. A fishing knife was found on him at arrest.

A significant aggravating factor was that the offender was on parole at the time, having been previously sentenced for aggravated robbery with wounding. That earlier offence involved a group assault on a seventeen-year-old who required open heart surgery after being stabbed.

  • What sentence was appropriate for armed robbery in light of the guideline in R v Henry, the maximum penalty, and the particular circumstances of these offences?
  • How should the offender's status as a parole offender be weighted as an aggravating factor, without double-counting?
  • To what extent did the offender's troubled upbringing and drug addiction reduce his moral culpability or affect the need for deterrence?
  • Was a finding of special circumstances justified, given the offender had previously failed to use a similar concession constructively?

Decision

His Honour identified the protection of ordinary citizens from street violence as a primary sentencing purpose, citing R v Ranse and the principle that people are entitled to go about their daily affairs free from the threat of physical harm. The offences were characterised as serious examples of a serious category, carrying a maximum of twenty years imprisonment. The Henry guideline was acknowledged as relevant but not as a ceiling.

The offender's parole status was treated as a significantly aggravating factor. His Honour was careful not to double-count by commencing the sentence from the date of arrest rather than an earlier date, while factoring the parole breach into the overall length of the sentence. The prior offence had also involved a knife, making the pattern of conduct particularly relevant to personal deterrence.

On the question of background and drug use, His Honour accepted that the offender's introduction to cannabis at age five by his father was not a matter of personal choice, and that his subsequent drug addiction had played a substantial role in his offending. Moral culpability was not formally reduced, and mental illness was not found to diminish the need for general deterrence to any significant degree. The offender's counsel had conceded that reduced moral culpability could not be established.

A 15 percent discount was applied for the guilty plea, which was entered on the day of trial following earlier notification. His Honour made a finding of special circumstances, despite some hesitation given the offender's failure to benefit from a similar finding previously. The finding was grounded in two considerations: the accumulation of sentences and the offender's need for extended supervision to address his drug addiction.

Orders Made

  • Non-parole period of five years, commencing 25 April 2014, expiring 24 April 2019.
  • Head sentence of eight years.
  • The Form 1 offence (assault with intent to rob whilst armed with an offensive weapon) taken into account.

Key Takeaways

  • The District Court confirmed that R v Henry provides a guideline rather than a ceiling for armed robbery sentences, and that the statutory maximum of twenty years must also inform the sentencing exercise.
  • A finding that the offender was on parole for an earlier knife-involved robbery was treated as a significantly aggravating factor, increasing the need for personal deterrence and affecting the length of sentence imposed.
  • Where an offender's initial drug use was not a matter of personal choice, that background can be relevant to the sentencing analysis, even where moral culpability is not formally reduced.
  • Special circumstances can be found even where a prior similar concession was not taken advantage of, provided the sentencing court identifies distinct justifications such as sentence accumulation and rehabilitation needs.
  • The guilty plea discount of 15 percent reflected a plea entered on the day of trial, following earlier notification rather than plea at the first available opportunity.

Legislation and Cases Referenced

Cases:
- R v Henry (1999) 46 NSWLR 346; (1999) 106 ACrimR 149 (guideline judgment for armed robbery)
- R v Hemsley [2004] NSWCCA 228 (mental illness and sentencing principles)
- R v Ranse, unreported, NSWCCA, 8 August 1994 (criminal justice and keeping the peace)

Legislation: No specific legislation was cited in the judgment text, though the offences and maximum penalties discussed relate to provisions of the Crimes Act 1900 (NSW).