Citation: R v Oygur [2017] NSWDC 278
Court: District Court of New South Wales
Date: 11 May 2017
Judge: Berman SC DCJ
Background
The offender, a 56-year-old man with a drug addiction spanning approximately 30 years, attended a medical practice in Blacktown seeking a prescription for Duragesic, a narcotic analgesic skin patch he had been abusing. The attending doctor refused, having discovered the offender was doctor shopping. Police were called to remove him from the premises.
Later that afternoon, the offender armed himself with a wooden skewer and entered a nearby pharmacy. He confronted the pharmacist and two other staff members, demanding to know the location of the safe and the Duragesic stock. In the course of the robbery, he grabbed a pharmacist by the arm and then by the hair, pulled another staff member to the ground by her hair, punched a member of the public who intervened, and pushed a third staff member to the ground as he fled. The entire incident was captured on CCTV.
The offender was arrested several days later. He told police he had no recollection of attending the pharmacy, attributing this to Xanax he had taken that afternoon. He pleaded guilty to assault with intent to rob whilst armed with an offensive weapon. A separate assault on the doctor earlier that day was placed on a Form 1 (a document allowing a court to take additional offences into account when sentencing, without recording separate convictions for them).
Legal Issues
- What was the appropriate sentence for assault with intent to rob whilst armed with an offensive weapon, having regard to the guideline judgment in R v Henry?
- What weight should be given to the offender's long-term drug addiction and its role in the offending?
- Were there special circumstances justifying a longer-than-standard parole period?
- What discount, if any, was warranted for the plea of guilty?
Decision
Berman SC DCJ noted that armed robbery was the subject of the second guideline judgment ever issued by the Court of Criminal Appeal, reflecting its seriousness. Under R v Henry, a sentence of four to five years is expected for the "commonly postulated" armed robbery involving a weapon such as a knife capable of killing or causing serious injury. His Honour acknowledged uncertainty about the precise dangerousness of the wooden skewer but accepted, on the agreed facts, that it was capable of inflicting serious injury.
Several factors aggravated the sentence. The offender had a significant criminal history including prior drug and violence offences. Multiple victims were subjected to real fear and physical harm. The offending involved at least some degree of planning: after being refused a prescription, the offender armed himself before entering the pharmacy. Balanced against this, his Honour accepted that genuine remorse had been expressed consistently, including during a police interview, before a psychologist, and in evidence at the sentencing hearing.
A 25% discount was applied to reflect the utilitarian value of the guilty plea. His Honour found special circumstances existed, warranting a departure from the standard ratio between the non-parole period and the head sentence. The offender's entrenched addiction would require structured support upon release to reduce the risk of reoffending. His Honour expressly framed special circumstances not as a benefit to the offender alone, but as being in the community's interests given the harm his continued offending caused others.
His Honour also observed that the offender's back pain would make custody harder than usual, as lawful access to narcotic analgesics in prison is limited, and noted that the prospects of rehabilitation remained uncertain at age 58.
Orders Made
- Sentence of imprisonment with a non-parole period of two and a half years and a head sentence of five years, commencing 2 June 2016.
- Non-parole period to expire on 1 December 2018, on which date the offender would be eligible for release to parole.
- Recommendation to Corrective Services that the offender be offered the EQUIPS addiction program while in custody.
Key Takeaways
- The District Court applied the R v Henry guideline, which sets a benchmark of four to five years for a commonly postulated armed robbery, while confirming this is not a rigid rule but an indicator of appropriate sentencing range.
- Where the nature of a weapon is genuinely uncertain on the evidence before the court, a sentencing judge will work within the agreed facts and accept any concession that the weapon was capable of inflicting serious injury.
- A 25% discount for a guilty plea was applied on the basis of utilitarian value, consistent with the principle that the discount reflects the practical benefits of an early plea rather than being a reward for contrition.
- Special circumstances justifying an extended parole period were found not as a concession to the offender, but because structured post-release supervision served the community's interest in reducing the risk of further harm to others.
- Long-term drug addiction, while relevant to background and prospects of rehabilitation, did not diminish the objective seriousness of an armed robbery that caused real fear and physical injury to multiple victims.
Legislation and Cases Referenced
Cases:
- R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R 149 (Court of Criminal Appeal guideline judgment on armed robbery sentencing)
Other References:
- Form 1 procedure (taking additional offences into account at sentencing)
- MERIT program (Magistrates Early Referral Into Treatment, a drug diversion program)
- EQUIPS addiction program (Corrective Services NSW rehabilitation program)