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District Court 6 December 2019

R v King

[2019] NSWDC 865

Assault & violenceTheft & property
SENTENCE ASSAULT WITH INTENT TO ROB

Citation: R v King [2019] NSWDC 865
Court: District Court of New South Wales
Date: 6 December 2019
Judge: Bright DCJ

Background

The offender, a 38-year-old man, was at a hotel on the NSW Central Coast on the evening of 2 February 2019. He witnessed two women loudly celebrate winning a poker machine jackpot of approximately $11,909 and then watched them collect $5,000 in cash at the main bar.

Shortly after, when one of the women left to use the hotel bathroom, the offender followed her. He pushed open her locked cubicle, covered her mouth, pushed her against the toilet, and demanded her wallet. He then punched her repeatedly to the face, threw her against a sink, and struck her head against a wall multiple times. Hotel staff heard her screams and intervened before he could take the wallet. He fled but was intercepted by police nearby.

The offender pleaded guilty in the Gosford Local Court on 13 September 2019 to one charge of assault with intent to rob under s 95(1) of the Crimes Act 1900, which carries a maximum penalty of 20 years imprisonment.

  • What was the appropriate objective seriousness of the offence?
  • What weight should be given to the offender's subjective circumstances, including mental health, background, and remorse?
  • What discount applied for the guilty plea, and at what point in proceedings was it entered?
  • Whether special circumstances justified departing from the standard statutory ratio between the non-parole period and the parole period.
  • What total sentence and non-parole period was appropriate?

Decision

Bright DCJ assessed the objective seriousness of the offence at the upper end of the middle of the range. The violence was sustained and deliberate, carried out in an enclosed space that offered the victim no reasonable prospect of escape. The offending was premeditated, in that the offender had observed the women's winnings being collected before following the victim. The actual bodily harm suffered included facial bruising, a laceration above the eye, whiplash, and bruising to the head and arm.

The sentencing judge considered the offender's subjective circumstances, which included a difficult background and mental health issues. Although the judgment text does not fully reproduce the background detail, Bright DCJ applied the principles from Bugmy v R [2013] HCA 37 concerning the relevance of deprived background to moral culpability. The court accepted that the offender was genuinely remorseful and had taken full responsibility for his conduct.

A 25% discount was applied to reflect the guilty plea, which was entered at the Local Court stage. The starting term before discount was four and a half years. General deterrence was identified as a very important sentencing consideration given the nature of the offending.

Special circumstances were found to exist, warranting an adjustment of the usual statutory ratio between the non-parole and parole periods. The offender had not previously served a custodial sentence and would require an extended period of supervision on release to address his mental health, alcohol use, and gambling issues.

Orders Made

  • The offender was convicted of one offence of assault with intent to rob under s 95(1) of the Crimes Act 1900.
  • Sentenced to a total term of imprisonment of three years and four months.
  • Non-parole period of two years, commencing 2 February 2019 and expiring 1 February 2021.
  • Balance of term of one year and four months, expiring 1 June 2022.
  • Special circumstances found; statutory non-parole ratio varied accordingly.

Key Takeaways

  • The District Court placed the objective seriousness of a sustained, targeted assault with intent to rob in a confined public space at the upper end of the middle range, reflecting the deliberate nature of the attack, the degree of violence, and the victim's complete vulnerability.
  • Premeditation need not be elaborate to be established: observing a victim's cash winnings and then following her into a bathroom was sufficient to satisfy the sentencing court that the offending was not spontaneous.
  • A guilty plea entered at the Local Court stage attracted a 25% discount, consistent with the approach to early pleas under the Crimes (Sentencing Procedure) Act 1999.
  • Under Bugmy v R [2013] HCA 37, evidence of a deprived background remained relevant to the assessment of the offender's moral culpability, even for serious violence offences.
  • Special circumstances justified extending the parole period beyond the statutory norm where the offender was a first-time prisoner with ongoing mental health, alcohol, and gambling treatment needs requiring lengthy post-release supervision.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 95(1) (assault with intent to rob)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A (purposes of sentencing), s 5(1) (imprisonment as last resort)

Cases:
- Bugmy v R [2013] HCA 37