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District Court 30 September 2019

R v Skopin

[2019] NSWDC 758

Assault & violenceTheft & propertyFirearms & weapons

Citation: R v Skopin [2019] NSWDC 758
Court: District Court of New South Wales
Date: 30 September 2019
Judge: M L Williams SC DCJ

Background

The offender, a 33-year-old man, appeared for sentencing after pleading guilty to one count of robbery armed with an offensive weapon under s 97(1) of the Crimes Act 1900. A second, materially similar offence was placed on a Form 1 to be taken into account. Both offences targeted pizza delivery drivers lured to false addresses by an unknown female co-offender.

In the principal offence, the offender confronted the delivery driver while holding a knife with a six-inch blade, demanded cash, and held the blade against the victim's wrist while the female co-offender restrained him. The driver's float money, phone, and wallet were taken. The Form 1 offence followed the same pattern: a false pizza order, an accomplice present, and the offender demanding money while holding a smaller knife and threatening its use.

The offender had a criminal record dating back to 2001, including prior offences involving offensive weapons and assault. He had experienced a period of abstinence from drugs and offending until a relationship breakdown in late 2017 led to methamphetamine use, which he identified as the direct cause of the robberies.

  • What was the appropriate head sentence and non-parole period for mid-range armed robbery by an offender with a drug addiction and prior criminal history?
  • How should drug addiction be treated in the sentencing calculus, including as a factor going to both objective seriousness and subjective circumstances?
  • Whether special circumstances existed to justify a non-parole period departing from the statutory ratio.
  • What weight should be given to the guilty plea, expressed remorse, and limited prior rehabilitation efforts?
  • How should the aggravating factor of offending while on bail affect the sentence?

Decision

The court assessed both offences as being around the mid-range of objective seriousness. The R v Henry guideline was largely applicable, though the court noted the offender was not a young person with little or no criminal history. There was a degree of planning, evidenced by the use of a female accomplice and the false delivery orders, but the violence involved was limited in nature.

The offender's drug addiction was treated in the manner contemplated by R v Henry: as relevant both to his objective criminality and as a subjective mitigating circumstance. The psychiatric report by Dr Furst, diagnosing substance-use disorder, chronic pain disorder, and drug-induced psychosis, was accepted with some caution in accordance with R v Qutami, but was found to provide a reasonable basis for sentencing. The court recommended that Justice Health take Dr Furst's report into account during the offender's custody.

A 25% discount was applied for the early plea of guilty. Remorse, conveyed to Dr Furst in an oblique fashion, and limited prior rehabilitation attempts also provided some slight amelioration of moral culpability. The court noted reasonable prospects of rehabilitation if the offender followed Dr Furst's recommendations and served an extended period of supervision after release.

Bail status at the time of the offences was identified as an aggravating factor. The court found special circumstances, justifying a non-parole period that represents a greater proportion of the total sentence than the statutory default, to allow for the extended supervision and rehabilitation recommended by the psychiatrist. The sentence was backdated to commence on 11 October 2018, with pre-sentence custody taken into account.

Orders Made

  • The offender was convicted of the principal offence.
  • Taking into account the Form 1 matter, a sentence of four years imprisonment was imposed, commencing 11 October 2018.
  • A non-parole period of two years and six months was imposed; the offender was eligible for release on 10 April 2021.
  • Special circumstances were found.

Key Takeaways

  • Drug addiction can operate on multiple levels in sentencing for armed robbery: as a factor bearing on objective criminality, as a subjective mitigating circumstance, and as a basis for finding special circumstances to extend the period of post-release supervision.
  • Under the R v Henry guideline for armed robbery, planning and the use of an accomplice are relevant aggravating features, even where the physical violence involved is limited.
  • Psychiatric evidence going to an offender's subjective circumstances is to be approached with caution, consistent with R v Qutami, but may still provide a sufficient basis for sentencing if its content is consistent with the offender's demonstrated history.
  • Offending while on bail remains an aggravating factor under the Crimes (Sentencing Procedure) Act 1999, and its presence was weighed alongside mitigating factors including the guilty plea and evidence of remorse.
  • A finding of special circumstances permits the court to extend the balance of the sentence served on parole, supporting longer post-release supervision where rehabilitation prospects are considered reasonable but require ongoing external support.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(1) (robbery armed with an offensive weapon)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A (purposes of sentencing)

Cases
- Attorney General's Application No. 1 [2002] NSWCCA 518; (2002) 56 NSWLR 146 (Form 1 guideline)
- R v Henry (1999) 46 NSWLR 346 (armed robbery guideline judgment)
- R v Qutami (2001) 127 A Crim R 396 (treatment of psychiatric evidence in sentencing)