Citation: R v Ashworth [2019] NSWDC 658
Court: District Court of New South Wales
Date: 16 April 2019
Judge: Bennett SC DCJ
Background
The offender, a young woman, pleaded guilty to robbery contrary to s 94 of the Crimes Act 1900, arising from an incident on 7 February 2018 at Lethbridge Park. The offence involved luring a former schoolmate to her home unit under the pretence of catching up, then robbing her of a mobile phone. The victim perceived a syringe being held to her neck during the robbery, though the Crown ultimately conceded it could not prove to the required standard that the offender was actually armed with one.
The original indictment charged the more serious offence of robbery while armed with an offensive weapon under s 97(1) of the Crimes Act 1900, carrying a maximum penalty of 25 years. The Crown accepted the offender's plea to the lesser charge of robbery under s 94 (maximum penalty: 14 years) in full satisfaction of the indictment.
The sentencing proceedings were notably protracted. They were adjourned on two separate occasions due to court workload, and the judge required direct evidence from the offender's birth father before finalising sentence, given his proposal to provide accommodation and support upon her release on parole.
Legal Issues
- What was the appropriate objective seriousness of the robbery offence?
- How should pre-sentence custody be calculated, given the offender was serving a concurrent sentence from the Children's Court at the time of arrest?
- What discount applied for the guilty plea, and when did the plea first become available?
- Whether special circumstances justified a non-parole period shorter than the statutory default (which is two-thirds of the head sentence)?
- What weight should general deterrence carry in sentencing, having regard to the offender's background, including a deprived and troubled upbringing and a history of substance abuse?
Decision
His Honour assessed the offence as close to, if not at, the mid-range of objective seriousness for robbery. The offender had lured the victim to her home, exploited her trust, and the victim experienced fear at what she believed was a syringe at her neck. The harm to the victim, including the fear and anxiety caused, was expressly recognised as a sentencing consideration.
On pre-sentence custody, the court exercised its discretion to backdate the sentence to 11 March 2018 rather than the date of arrest (7 February 2018). This reflected partial concurrence with a three-month Children's Court sentence the offender was already serving for breaching conditional liberty by committing this very offence. His Honour treated the two sentences as partly concurrent and partly cumulative.
The plea of guilty attracted a discount of between 12.5 and 15 per cent. The precise figure was not fixed, as his Honour abandoned any additional days to achieve a sentence expressed in clean periods of years and months. The plea was not entered at the first opportunity, but the Crown conceded it had genuine utility.
His Honour found special circumstances existed to justify a longer-than-standard parole period, primarily due to the offender's troubled background, history of substance abuse, and the concrete support structure her father and stepmother had committed to providing on her release. While general deterrence retained some role given the objective seriousness of the offence, its weight was reduced by the offender's personal circumstances, consistent with the principles in Bugmy and Fernando.
Orders Made
- Total sentence of 3 years imprisonment.
- Non-parole period of 1 year and 9 months, commencing 11 March 2018 and expiring 10 December 2019.
- Balance of sentence (parole period) of 1 year and 3 months, commencing 11 December 2019 and expiring 10 March 2021.
- The offender to be released to parole automatically at the expiration of the non-parole period, with supervision in accordance with applicable regulations (no separate parole order required, as the total sentence was less than 3 years).
Key Takeaways
- The District Court applied the Bugmy and Fernando principles to reduce (though not eliminate) the weight of general deterrence where the offender's background included significant deprivation, trauma, and substance abuse from a young age.
- A finding of special circumstances permitted the non-parole period to fall below the statutory default of two-thirds of the head sentence, with the extended parole period justified by the offender's rehabilitative needs and a concrete, credible support arrangement upon release.
- Where an offender is already serving a sentence from another court at the time of arrest, the sentencing court retains a discretion over the commencement date of the new sentence, and may order partial concurrence rather than full accumulation or full concurrence.
- Sufficient evidence of a structured post-release support plan, including direct oral evidence from a family member, can inform both the special circumstances finding and the overall sentencing disposition.
- A guilty plea entered after the first opportunity, but accepted by the Crown in satisfaction of a more serious charge, still attracts a discount, though the precise percentage may be calibrated below the maximum available.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 94, 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Part 4, Division 1A
Cases
- Bugmy v R [2013] HCA 27
- Fernando (1992) 76 A Crim R 58
- Henry & Ors [1999] NSWCCA 111
- McNaughton (2006) 66 NSWLR 566