Citation: R v Greer; R v Stewart [2018] NSWDC 159
Court: District Court of New South Wales
Date: 13 April 2018
Judge: Berman SC DCJ
Background
Two men, both Aboriginal, were sentenced for robbery in company following an incident in the early hours of 3 October 2016 on Anzac Parade, Kingsford. After a day of playing football and an evening of heavy drinking, the pair encountered an innocent pedestrian walking home and violently robbed him. Both offenders claimed to have no memory of the offence due to their level of intoxication.
The first offender had a prior criminal history that included aggravated entering of a dwelling, common assault, failure to appear, and contravening an Apprehended Violence Order. He had also been on a conditional bond at the time of the offence, which he breached. The second offender had one prior matter, an affray, also alcohol-related, dealt with by way of a non-conviction order. Both men had histories of aggressive or criminal behaviour connected to excessive alcohol consumption.
The offending involved one offender grabbing the victim around the neck and pinning him against a fence while the other took cash from his wallet. The first offender also took the victim's iPhone, slapped him, and made threatening remarks. The victim sustained scratches and redness to his neck. Both men pleaded guilty at the earliest opportunity, attracting a 25 per cent discount on sentence.
Legal Issues
- What was the objective seriousness of the robbery in company offence, having regard to the use of violence?
- What weight, if any, should intoxication receive as a mitigating factor in sentencing?
- What application, if any, did the principles from Bugmy v The Queen have regarding the offenders' Aboriginal backgrounds and disadvantage?
- What individual subjective circumstances were relevant to each offender's sentence, including criminal history, personal circumstances, and prospects of rehabilitation?
- How should personal and general deterrence be weighted in the sentences imposed?
Decision
His Honour described the offence as objectively serious. An innocent man was targeted at random while walking home at night, subjected to choking, threats, and theft. The court emphasised that the public is entitled to move freely without being subjected to violent street robbery, and that general deterrence was a significant sentencing consideration.
The court was unequivocal that intoxication carried no mitigating weight in assessing the gravity of the offence. Both offenders had a known pattern of illegal and aggressive behaviour when drunk, yet continued to drink to excess. The court applied the established principle that voluntary intoxication does not reduce the objective seriousness of offending, particularly where the connection between alcohol and criminal behaviour is well-established in an offender's history.
On the Bugmy question, the court acknowledged both men's Aboriginal identity but found that, aside from the issue of alcohol, this was not a case where the Bugmy principles bore heavily on sentence. Both men were raised in households where appropriate behaviour was modelled, and neither presented a background of severe deprivation or trauma of the kind that Bugmy specifically addresses.
Sentencing was adjourned for both offenders rather than determined on the day. The first offender faced a real prospect of imprisonment, with the court noting that but for logistical difficulties arising from Corrective Services industrial action, a custodial sentence would likely have been imposed immediately. The second offender was referred for an Intensive Corrections Order assessment. Both men received a 25 per cent guilty plea discount. The breach of the existing bond by the first offender was also to be dealt with at the adjourned hearing.
Orders Made
• Mr Greer's bail conditions: supervision by Probation and Parole Service; completion of courses regarding alcohol consumption and anger management; continued attendance with Brad Freeman as determined necessary
• Mr Stewart: adjournment until 22 June 2018 for assessment of suitability for Intensive Corrections Order
• Mr Stewart granted unconditional bail pending assessment
• Adjourned for sentence to Friday 22 June 2018 for Mr Stewart
• Adjourned to Friday 15 March 2019 for Mr Greer
Key Takeaways
- Voluntary intoxication does not mitigate the objective seriousness of an offence, particularly where an offender has a known and repeated pattern of criminal behaviour arising from excessive drinking.
- The District Court found that Bugmy v The Queen considerations, while always relevant when sentencing Aboriginal offenders, did not loom large in this case given that both men were raised in households where appropriate conduct was modelled and neither demonstrated the kind of profound childhood deprivation Bugmy directly addresses.
- Personal deterrence was a significant sentencing factor for both offenders, given their histories of alcohol-fuelled offending, and the court treated the continuation of excessive drinking, despite known consequences, as a matter properly reflected in sentence.
- A 25 per cent discount applied to each offender's sentence by reason of early guilty pleas.
- Robbery in company involving physical violence against a random pedestrian was treated as a serious offence attracting meaningful weight on general deterrence, reinforcing the principle that people are entitled to walk public streets at night without being subjected to violent robbery.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 10
Cases
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R 149