Citation: R v Doidge [2019] NSWDC 228
Court: District Court of New South Wales
Date: 18 April 2019
Judge: Bright DCJ
Background
The offender, a 27-year-old man, appeared for sentencing on one count of robbery whilst armed with an offensive weapon under s 97(1) of the Crimes Act 1900, carrying a maximum penalty of 20 years imprisonment. A secondary matter of self-administering a prohibited drug (heroin) was also before the court on a s 166 Certificate.
The offence occurred on 4 May 2017 at a shopping centre in Bateau Bay on the NSW Central Coast. The offender followed an elderly woman after observing her obtain cash at a supermarket checkout. He confronted her on a nearby pathway, produced a pair of scissors, and forcibly took her handbag, wallet and cigarettes. The victim fell to the ground during the struggle and sustained minor physical injuries. The total cash taken was $32.40, along with personal cards.
The offender pleaded guilty on the first day of trial on 3 July 2018, attracting a 10% discount. He had been in continuous custody since his arrest on 6 June 2017.
Legal Issues
- What was the appropriate objective seriousness of the offending, applying the guideline judgment in R v Henry?
- How should the offender's extensive criminal history and breach of conditional liberty be treated in sentencing?
- What weight should be given to the offender's severely dysfunctional upbringing and mental health issues as subjective mitigating factors, applying Bugmy v R?
- Whether special circumstances existed to justify a departure from the standard non-parole period ratio, to allow for a longer supervisory parole period.
- What orders, if any, should be made on the breach of existing s 9 bonds?
Decision
Bright DCJ assessed the objective seriousness of the robbery as falling below the middle of the range. Relevant factors included the limited degree of planning, the use of scissors described as "school scissors" capable of causing injury but not particularly dangerous, the small value of property taken, and the limited actual violence (though a threat of violence was present when the scissors were pointed at the victim). The court applied the guideline in R v Henry and was satisfied the offending fell within its parameters.
Two aggravating factors were accepted. First, the offending occurred while the offender was on conditional liberty, specifically on multiple s 9 bonds. Second, while the court declined to use the offender's extensive interstate criminal history as a formal aggravating feature, it found that his record nonetheless warranted a more severe penalty as a matter of retribution, deterrence, and community protection, consistent with Veen v R (No 2).
The court gave significant weight to the offender's subjective circumstances. His background involved severe deprivation and trauma from a young age, including exposure to domestic violence, parental substance abuse, and early removal from the family home. Consistent with Bugmy v R, the court found that such a background diminishes the role of general deterrence and increases the importance of rehabilitation. The court also accepted evidence of the offender's diagnosed mental health conditions and his growing engagement with treatment while in custody.
Special circumstances were found to exist, warranting a departure from the standard two-thirds non-parole period ratio. The court varied the ratio to approximately 60%, producing a longer parole period to ensure the offender received adequate supervision and continued access to treatment upon release.
Orders Made
- Total sentence: 3 years and 7 months imprisonment (after 10% guilty plea discount applied to a 4-year head sentence), commencing 6 June 2017 and expiring 5 January 2021.
- Non-parole period: 2 years and 2 months, with eligibility for parole from 5 August 2019.
- Parole period: 1 year and 5 months (approximately 60% non-parole ratio, reflecting special circumstances).
- Drug offence on s 166 Certificate: proved, no further penalty imposed pursuant to s 10A.
- Breaches of s 9 bonds (imposed 7 September 2016 and 5 December 2016): no action taken pursuant to s 107C(5)(a) of the Crimes (Administration of Sentences) Act, on the basis that any supervision under those bonds would be subsumed within the parole conditions for the principal offence.
Key Takeaways
- The District Court applied R v Henry to assess objective seriousness for armed robbery, treating the limited planning, modest level of violence, and low-value property taken as factors placing this offending below the mid-range.
- Under Bugmy v R, a severely dysfunctional childhood continues to carry mitigating weight at sentencing regardless of the offender's prior record, because such deprivation does not diminish with repeated offending.
- An offender's criminal history, while not automatically an aggravating feature, can still support a more severe penalty where retribution, deterrence, and community protection so require, consistent with Veen v R (No 2).
- Special circumstances justifying a departure from the standard non-parole ratio were established where the offender had significant treatment needs best addressed through an extended period of supervised parole.
- Where s 9 bond breaches would be entirely subsumed by parole conditions attached to a new principal sentence, taking no action on the breaches may be the appropriate course.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3(g)
- Drug Misuse and Trafficking Act 1985 (NSW), s 12(1)
- Crimes (Administration of Sentences) Act (NSW), ss 107C(1)(c), 107C(5)(a)
Cases
- Bugmy v R [2013] HCA 37
- Imbornone v R [2017] NSWCCA 144
- R v Henry (1999) 46 NSWLR 346
- Veen v R (No 2) [1998] HCA 14