Citation: R v Balawagaga [2019] NSWDC 91
Court: District Court of New South Wales
Date: 5 March 2019
Judge: Colefax SC DCJ
Background
The offender, a 22-year-old woman, appeared for sentencing on two serious offences arising from events on 20 February 2018 in Chester Hill, NSW. At the time, she was on both a section 9 good behaviour bond (for assaulting a police officer) and on parole following an earlier armed robbery conviction. On the afternoon in question, she had recently been involved in a confrontation with mental health providers and had been using methamphetamine (ice) for several days.
Armed with a knife approximately 20 centimetres in length, the offender approached a 16-year-old girl in school uniform who was standing outside Bass Hill Police Station waiting for her mother. She grabbed the victim, held the knife to her head and then her throat, took the victim's mobile phone, and then forced the victim into the police station while threatening to kill her. The entire incident was captured on CCTV. Police officers at the station disarmed the offender and took her into custody.
The court also called up the earlier section 9 bond for the assault of a police officer, which was imposed by the Local Court at Parramatta in December 2017. All three matters were dealt with together at sentencing.
Legal Issues
- What sentences were appropriate for robbery armed with an offensive weapon (s 97(1), Crimes Act 1900) and take or detain with intent to obtain an advantage (s 86(1)(b), Crimes Act 1900)?
- What weight should be given to the offender's significant mental health history, specifically a revised diagnosis of borderline personality disorder, in assessing culpability, deterrence, and rehabilitation?
- What discount applied to reflect an early guilty plea?
- Whether special circumstances existed to justify departing from the standard ratio between the head sentence and the non-parole period.
- How should the sentences for the three matters be structured, including whether they should run concurrently or cumulatively?
Decision
The District Court assessed the armed robbery as a mid-range offence of its kind, and the take or detain offence as above mid-range. Both principal offences were aggravated by the fact the offender was on a section 9 bond and on parole at the time, and the latter offence was further aggravated by the use of a weapon.
Three expert reports were before the court: from a Justice Health psychiatrist, a neuropsychologist, and a second psychiatrist. All three agreed that the offender's long-standing diagnosis of schizophrenia was incorrect, and that borderline personality disorder was the accurate diagnosis. The court accepted this finding and noted that treatment for borderline personality disorder is considerably more difficult than for schizophrenia. The court also accepted that the offender's heavy drug use had been an attempt to self-medicate in the absence of a correct diagnosis or appropriate treatment.
The court found that because of the offender's mental health conditions, she was not an appropriate vehicle for specific or general deterrence. However, this same finding increased the weight given to the protection of the community. The court expressed that the offender's prospects of rehabilitation were poor, given the absence of evidence that specialised intensive programs of the kind recommended by the experts were available in custody or in the community.
On the question of remorse, the court accepted the neuropsychologist's assessment that the offender demonstrated limited empathy and that expressions of remorse were unconvincing. The court treated this not as a factor against the offender, but as a symptom of her borderline personality disorder. A finding of special circumstances was made, reflecting the offender's age and the view that a longer parole period would better serve any prospect of rehabilitation.
Orders Made
- Assault police (s 9 bond called up): Fixed term of one month imprisonment, commencing 15 February 2019 and expiring 14 March 2019.
- Robbery armed with an offensive weapon (s 97(1)): Six years imprisonment, commencing 15 February 2019; non-parole period of three years; balance of term three years. Eligible for parole on 14 February 2022.
- Take or detain with intent to obtain an advantage (s 86(1)(b)): Six years imprisonment, commencing 15 February 2019; non-parole period of three years; balance of term three years. Eligible for parole on 14 February 2022.
- All three sentences to run concurrently.
- Special circumstances found: non-parole period set at three years out of a six-year head sentence, departing from the statutory default ratio.
Key Takeaways
- The District Court confirmed that a mental health diagnosis, particularly one as complex as borderline personality disorder, can simultaneously reduce the weight given to deterrence as a sentencing objective and increase the significance of community protection.
- Where an offender is on parole and subject to a good behaviour bond at the time of further serious offending, both factors operate as aggravating circumstances at sentence.
- A 25 per cent discount on sentence was applied in recognition of the offender's early guilty plea, reducing what would otherwise have been an eight-year head sentence to six years for each principal offence.
- Special circumstances under the sentencing framework can be established by reference to an offender's youth and the desirability of a longer parole period to support rehabilitation prospects, even where those prospects are assessed as poor.
- Accepted expert evidence that a long-standing misdiagnosis led to years of incorrect treatment, combined with a history of self-medication through illicit drug use, were treated as relevant subjective factors, though they did not displace the seriousness of the offending.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 97(1) (robbery armed with an offensive weapon, maximum 20 years)
- Crimes Act 1900 (NSW), s 86(1)(b) (take or detain with intent to obtain an advantage, maximum 14 years)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 5 (threshold for full-time custody, referenced in judgment)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9 (good behaviour bond, referenced in judgment)
Cases:
- The Queen v Henry (guideline judgment on robbery armed with an offensive weapon, referenced by the court)