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District Court 15 July 2019

R v Naylor

[2019] NSWDC 414

Assault & violenceTheft & property
CRIME SENTENCE AGGRAVATED ROBBERY

Citation: R v Naylor [2019] NSWDC 414
Court: District Court of NSW
Date: 15 July 2019
Judge: Colefax SC DCJ

Background

The offender, a 42-year-old man with an extensive criminal history, appeared for sentence on one count of aggravated robbery with intentional infliction of actual bodily harm, contrary to s 95(1) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is 20 years imprisonment.

The offence occurred in December 2017 at a Parramatta car park. The offender, who had known the victim for approximately 20 years, followed him after an argument and physically assaulted him, punching him to the head and kicking him while he was on the ground. The offender then stole the victim's bag and mobile phone. Police located the offender nearby at a convenience store attempting to sell the phone shortly after the incident. The victim's injuries were treated as superficial and he was not admitted to hospital.

The offender had been on parole for only two months before the offence was committed. He entered a guilty plea on the first day of his trial, resulting in a late plea discount of 10%. He had a long history of drug dependency, including ice use at the time of the offence, as well as associated mental health issues.

  • What sentence was appropriate for an aggravated robbery involving actual bodily harm, having regard to the R v Henry guideline judgment?
  • What weight should be given to the offender's criminal history, drug dependency, mental health, and personal background as mitigating or aggravating factors?
  • Whether the offender's late guilty plea warranted a discount, and if so, how much?
  • Whether special circumstances existed to justify varying the standard ratio between the head sentence and the non-parole period?

Decision

Colefax SC DCJ assessed the objective seriousness of the offence as towards, but not at, the bottom of the range for offences of its kind. The physical assault was real but the resulting injuries were minor, and the judge inferred from this that the offender had not kicked the victim in the head, noting that such conduct would have attracted a materially heavier sentence.

The offending was aggravated by the offender being subject to three section 9 bonds and being on parole at the time. The judge declined to characterise the offender's upbringing as "dysfunctional" in the sense recognised by the High Court in Bugmy, finding that, despite the absence of a father figure, the offender had received love and support from his mother and siblings.

Drug dependency and untreated mental health issues were identified as central to the offender's offending history. The judge observed that the offender's mental health deteriorated when he ceased prescribed medication on release from custody, which contributed directly to his reoffending. Genuine remorse was ultimately accepted, notwithstanding the late plea and the offender's initial minimisation of his conduct in a sentencing assessment report.

The court found special circumstances warranting a departure from the standard non-parole period ratio. A longer parole period was considered likely to enhance rehabilitation prospects, particularly if the offender continued prescribed medication and accepted supervision by Community Corrections.

Orders Made

  • Head sentence of 3 years and 2 months imprisonment (reflecting a 10% discount for the late guilty plea, from a pre-discount term of 3 years and 6 months), commencing 6 January 2018.
  • Non-parole period of 1 year and 7 months, commencing 6 January 2018 and expiring 5 August 2019.
  • Balance of sentence of 1 year and 7 months, commencing 6 August 2019 and expiring 5 March 2021.

Key Takeaways

  • The District Court assessed the offence as towards the lower end of the objective seriousness range, with the relatively minor physical injuries and the apparent absence of kicks to the head being relevant to that assessment.
  • Being on parole at the time of the offence, and subject to multiple section 9 bonds, operated as specific aggravating factors going beyond the offence itself.
  • A guilty plea entered on the first day of trial attracted only a 10% discount, reflecting its lateness in the proceedings; the strength of the Crown case made the delay difficult to explain.
  • Special circumstances were found to exist based on the offender's rehabilitative prospects, particularly the relationship between unmedicated mental illness and drug relapse, justifying an equal split between the non-parole period and the balance of sentence rather than the standard ratio.
  • Under R v Henry, the guideline judgment for robbery offences, the court is required to position the sentence within a range calibrated to objective seriousness, with personal circumstances then capable of adjusting the outcome upward or downward.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 95(1) (aggravated robbery with actual bodily harm)

Cases
- R v Henry (1999) 46 NSWLR 346 (guideline judgment for robbery offences)
- Bugmy v The Queen [2013] HCA 37 (referred to in the context of dysfunctional upbringing as a mitigating factor)