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District Court 27 July 2018

R v Devries

[2018] NSWDC 368

Theft & propertyFirearms & weaponsPublic order & justice offences
SENTENCING — MULTIPLE OFFENCES ROBBERY ARMED WITH AN OFFENSIVE WEAPON FORM 1 MATTERS TROUBLED CHILDHOOD BACKGROUND OF DEPRIVATION AND NEGLECT ONGOING SUBSTANCE ABUSE

Citation: R v Devries [2018] NSWDC 368
Court: District Court of New South Wales
Date: 27 July 2018
Judge: M L Williams SC DCJ

Background

The offender, a 24-year-old Aboriginal man, appeared for sentencing on two counts of robbery armed with an offensive weapon under s 97(1) of the Crimes Act 1901, each carrying a maximum penalty of 20 years imprisonment. Two further offences (a third armed robbery and possession of a knife in a public place) were attached on a Form 1 to be taken into account on sentence for the first count.

The offences occurred across a ten-day period in late February and early March 2017, all involving knife-point demands for cash from convenience store attendants in Surry Hills. The offender had absconded from a court-ordered rehabilitation facility (Bennelong's Haven) just three days before the first offence, having been released to parole only weeks earlier following a prior sentence for armed robbery and aggravated break and enter.

Expert psychiatric evidence from Associate Professor Kimberlie Dean described the offender as having a long history of polysubstance abuse, extremely low cognitive functioning, and a profoundly troubled upbringing marked by inadequate parenting, multiple foster placements, and school leaving at Year 5. At the time of the offences he had been awake for approximately eleven days due to ice use and was motivated by the need to obtain drugs and food.

  • What aggregate sentence was appropriate for two counts of armed robbery, taking into account the Form 1 matters, the offender's criminal history, his personal circumstances, and the principles of totality?
  • How should the court weigh the R v Fernando principles and the Bugmy principles in sentencing an Aboriginal offender with severe background deprivation?
  • What start date should be fixed for the sentence, given that the offender had been in custody since 9 March 2017 partly due to the revocation of a prior parole?
  • Were special circumstances established so as to justify a non-parole period that departed from the statutory one-third ratio?

Decision

The court accepted that a substantial term of full-time custody was required. Both the objective seriousness of the offences (multiple knife-point robberies against strangers, causing significant fear, committed while on conditional liberty) and the offender's extensive prior record pointed firmly toward a significant sentence. The R v Henry guideline for armed robbery was treated as a useful starting point, and the court weighed the aggravating features, including breach of parole and prior convictions for the same type of offending, against the subjective matters.

In mitigation, the court applied the Bugmy and Fernando principles, acknowledging that the offender's background of deprivation, neglect, and displacement could not be treated as diminishing in relevance over time. His cognitive impairment, assessed as extremely low range, and his long history of substance dependency from early childhood were accepted as genuinely mitigating, even though his frankly stated disinterest in rehabilitation and his conduct during the proceedings tempered any optimism about future prospects.

On the question of the sentence commencement date, the court engaged carefully with the authorities on backdating. It noted that, unlike in R v Kaiva and Ith v R, the revocation of parole here was not solely referable to the new offences but arose from the earlier abscondance. Following Callaghan v R, the court observed that because the balance of the prior parole term was not "quite short" (it was close to two years), it was not appropriate to treat all pre-sentence custody as attributable to the earlier offences. In the exercise of its discretion, the court fixed commencement on 7 March 2018, approximately one year after parole was revoked, as a fair reflection of totality.

Special circumstances were found to exist, justifying a longer than usual ratio between the non-parole period and the balance of term. The court cited the need for extended supervision on release, the offender's young age, his very low cognitive functioning, his difficult upbringing, and the accumulation of sentences as the bases for that finding.

Orders Made

  • The offender was convicted of each offence.
  • An aggregate sentence of 5 years and 6 months imprisonment was imposed, commencing 7 March 2018 and expiring 6 September 2023.
  • A non-parole period of 3 years and 4 months was fixed, expiring 6 July 2021, with the offender eligible for parole on that date.
  • Indicative sentences: Sequence 001 (including Form 1 matters) 4 years 10 months; Sequence 002 three years 9 months.
  • Special circumstances found.

Key Takeaways

  • The District Court confirmed that where a parole revocation is not solely caused by the new offending (here, abscondance preceded the fresh crimes), the sentencing court retains a discretion under s 47(5) of the Crimes (Sentencing Procedure) Act 1999 as to the backdating of the commencement date, and is not required to treat all pre-sentence custody as referable to the new offences.

  • Under the Callaghan v R approach, backdating all custody to the revocation date is more likely to be appropriate where the balance of the prior parole term is "quite short"; where it is substantial (here, close to two years), a partial backdating reflecting totality principles is available.

  • The Bugmy and Fernando principles require courts to give genuine weight to an Aboriginal offender's background of deprivation and neglect as a mitigating factor, and that weight does not diminish by reason of the offender's repeated prior offending or apparent unwillingness to engage with rehabilitation.

  • Cognitive impairment assessed in the extremely low range, combined with severe childhood disadvantage, can support a finding of special circumstances and a longer supervision period on release, even where prospects of rehabilitation appear limited.

  • Committing serious offences within days of release on parole, and while subject to a rehabilitation condition, remains a significant aggravating factor that the sentencing court must weigh against subjective circumstances, including the offender's background and mental health profile.

Legislation and Cases Referenced

Legislation
- Crimes Act 1901 (NSW), s 97(1) (robbery armed with offensive weapon)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3, 5, 47(5)

Cases
- Bugmy v The Queen [2013] HCA 37
- Callaghan v R [2006] NSWCCA 58
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- Ith v R [2013] NSWCCA 280
- Pearce v The Queen (1998) 194 CLR 610
- R v Fernando (1992) 76 A Crim R 58
- R v Henry (1999) 46 NSWLR 346
- R v Kaiva (NSWCCA, unreported, 9 November 1998)
- R v Millwood [2012] NSWCCA 2