Citation: R v Campbell [2018] NSWDC 500
Court: District Court of New South Wales
Date: 9 March 2018
Judge: M L Williams SC DCJ
Background
The offender, Stephen Campbell, was found guilty by a jury of assault with intent to rob while armed with an offensive weapon under s 97(1) of the Crimes Act 1900. The offence occurred on 29 June 2016 at Blacktown, when Campbell and his co-offender, Washington Alegre, followed two members of the public and Campbell confronted one of them, demanding money and swinging punches while holding a knife. Two off-duty police officers intervened and took the knife from Campbell.
At trial, the sole issue was whether Campbell had acted under duress. Campbell gave evidence that Alegre had threatened to kill him if he did not rob enough people to raise $1,000, and had given him a knife while threatening to slit his throat if he called out to police. The jury rejected duress as a complete defence and returned a guilty verdict, but the circumstances of the duress claim remained relevant to the sentencing exercise.
Campbell had an extensive criminal history beginning in the Children's Court from 2012, including numerous assaults and other offences. He was 20 years old at the time of the offence and had a deeply troubled background, including severe developmental trauma, mental health conditions, and long-term drug and alcohol abuse. This was his first time in adult custody.
Legal Issues
- Whether the duress evidence, though not exculpatory, was relevant to and should be taken into account in fixing the appropriate sentence
- Whether parity concerns arose from the sentence imposed on the co-offender, Alegre, who had received a s 9 bond despite carrying a bag containing multiple knives, razors, and a balaclava
- Whether special circumstances existed to justify a variation to the standard ratio between the non-parole period and the head sentence
- The weight to be given to the offender's personal circumstances, including mental health, developmental trauma, and rehabilitation prospects
Decision
Williams SC DCJ identified two complexities in sentencing Campbell. The first was the duress evidence that emerged at trial: although the jury did not accept duress as a complete defence, the court proceeded on the basis that Alegre had made genuine threats against Campbell and that this context was relevant to the offender's moral culpability. The court accepted Campbell's account as a proper basis on which to proceed.
The second complexity was parity with Alegre. Gartelmann DCJ had sentenced Alegre to a s 9 bond, which the court acknowledged could give rise to a legitimate sense of grievance on Campbell's part. However, the court noted that the charges and maximum penalties applicable to each offender were different, and that recent authority establishes that matters of substance are more important than matters of form when assessing parity. The court concluded that a non-custodial outcome was not appropriate for Campbell given his record and the nature of his offending.
On special circumstances, the court was satisfied that a departure from the standard non-parole ratio was warranted. This was Campbell's first period of adult custody, and there was clear evidence supporting the need for substantial supervision, counselling, and ongoing support in the community through his case manager and associated organisations.
The court imposed a sentence of 2 years and 4 months imprisonment, with a non-parole period of 16 months, reflecting the finding of special circumstances and the various mitigating factors, including the non-exculpatory duress, the offender's age, mental health history, and the availability of structured community support upon release.
Orders Made
- Campbell convicted of assault with intent to rob while armed with an offensive weapon
- Sentenced to 2 years and 4 months imprisonment, commencing 6 December 2016 and expiring 5 April 2019
- Non-parole period of 16 months, expiring 5 April 2018, with eligibility for parole on that date
- Special circumstances found
Key Takeaways
- Non-exculpatory duress (that is, duress that the jury rejected as a complete defence but which nonetheless existed on the evidence) remains a relevant factor in sentencing, bearing on the offender's moral culpability.
- Parity with a co-offender's sentence does not require identical outcomes where the charges, maximum penalties, and personal circumstances of each offender differ materially. Recent authority confirms that substance prevails over form in parity assessments.
- A finding of special circumstances was supported by two concurrent factors: the offender's first time in adult custody, and clearly demonstrated need for significant supervision and therapeutic support on release.
- Where duress evidence is accepted as a factual basis for sentencing (even without a complete defence), the court may take it into account in assessing the weight of general and specific deterrence alongside other sentencing purposes under s 3A of the Crimes (Sentencing Procedure) Act 1999.
- Severe developmental trauma, mental health conditions, and a troubled childhood may be considered as part of the offender's background, though a lengthy prior record of violent offending limits the degree of mitigation available.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 97(1) (assault with intent to rob while armed with an offensive weapon; maximum 20 years imprisonment)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A (purposes of sentencing); s 9 (bonds)
Cases:
- Tiknius v R [2011] NSWCCA 215 (parity principles)