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District Court 1 July 2016

R v PITT

[2016] NSWDC 425

Assault & violenceTheft & property
CRIMINAL ABORIGINALITY RELEVANCE TO SENTENCING,

Citation: R v Pitt [2016] NSWDC 425
Court: District Court of New South Wales
Date: 1 July 2016
Judge: Judge S Norrish QC

Background

The offender was found guilty by jury of two counts of robbery in company under s 97(1) of the Crimes Act 1900, each carrying a maximum penalty of 20 years imprisonment. The offences arose from a single criminal episode on 29 March 2015, in which the offender and a co-accused entered a convenience store in Waterloo with their faces covered and robbed two employees of cash, a wallet, a mobile phone, and other personal items.

The prosecution case was largely circumstantial, relying on CCTV footage, bus camera images, lift footage, clothing found at a nearby apartment, and a partial DNA match. The offender did not give evidence at trial. He had been in custody since his arrest on 6 May 2015, initially serving the balance of a revoked parole period before being held on remand.

The co-accused, who was sentenced separately by Judge Tupman on 15 January 2016, had pleaded guilty at the Local Court to the more serious offences of robbery whilst armed with an offensive weapon.

  • What head sentence and non-parole period were appropriate for two concurrent offences of robbery in company?
  • How should the principle of parity operate where the co-accused pleaded guilty to the more serious armed robbery offences?
  • How should the offender's Aboriginal background and associated disadvantage be weighed as a mitigating factor under the principles in Bugmy v The Queen?
  • How should the court address the aggravating factor of the offences being committed whilst the offender was on conditional liberty (parole)?
  • What account should be taken of the pre-sentence custody period, including time served on the revoked parole?

Decision

Judge Norrish imposed concurrent sentences of five years imprisonment on each count, with a non-parole period of three years. The sentences were backdated to commence on 6 July 2015, a date falling within the period when the offender was serving the balance of his revoked parole, so as to avoid any "double dipping" in the calculation of time already served.

The court treated the commission of the offences whilst on parole as an aggravating factor. Parity with the co-accused was carefully considered. Although the co-accused had pleaded guilty to more serious offences (armed robbery), the offender had a lengthier criminal history, was approximately five years older, and had been on parole at the time of the offences. The court was satisfied the sentencing outcome was appropriately differentiated and consistent with parity principles.

The court applied the Bugmy principles, which require that an offender's deprived background, including the background associated with being Aboriginal, must be taken into account at sentencing and does not diminish in relevance regardless of the length of the offender's criminal history. The judge found that much of the offender's early criminal history reflected the disadvantage evident in his background, as described both in a psychological report and in the offender's account to Community Corrections.

The offender was noted as an eligible offender for the Compulsory Drug Treatment program. The court ordered a referral to the Drug Court for assessment, though the ultimate decision about participation rested with that court.

Orders Made

  • Two concurrent sentences of five years imprisonment imposed for each count of robbery in company, commencing 6 July 2015 and expiring 5 July 2020.
  • Non-parole period of three years fixed on each count, commencing 6 July 2015 and expiring 5 July 2018, with eligibility for release to parole from 6 July 2018.
  • The offender referred to the Drug Court for assessment of suitability for the Compulsory Drug Treatment Correctional Centre program.

Key Takeaways

  • The District Court confirmed that an offender's Aboriginal background and associated disadvantage remain a relevant mitigating consideration at sentence, and do not diminish in weight simply because the offender has an extensive criminal history, consistent with Bugmy v The Queen.
  • Where an offender is serving a revoked parole period at the time of sentencing, the court may backdate the commencement of the new sentence to a point during that parole period to ensure there is no "double dipping" in the effective calculation of punishment.
  • Parity with a co-accused is not a mechanical exercise. The District Court here weighed differences in the seriousness of the offences charged, the length and nature of each offender's criminal history, and whether either was on conditional liberty at the time of the offending.
  • Commission of offences whilst on parole remains an aggravating factor under the Crimes (Sentencing Procedure) Act 1999, and the court here treated it as such in setting the overall sentence.
  • A referral to the Drug Court for assessment of the Compulsory Drug Treatment program is a sentencing option available where the court identifies an offender as potentially eligible, though eligibility and participation remain matters for the Drug Court and Corrective Services.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1) (robbery in company; robbery whilst armed)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Bugmy v The Queen [2013] HCA 37
- Henry v R (1999) 46 NSWLR 346
- Pearce v R (1998) 194 CLR 610