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District Court 28 August 2019

R v Payne

[2019] NSWDC 916

Assault & violenceTheft & property
CRIME SENTENCE DEMAND WITH MENACES IN COMPANY PARITY OBJECTIVE SERIOUSNESS SUBJECTIVE MATTERS

Citation: R v Payne [2019] NSWDC 916
Court: District Court of New South Wales
Date: 28 August 2019
Judge: King SC DCJ

Background

Late in the evening of 11 June 2018, three young people, including two minors aged 13 and 16, were walking along a street in Albury when they were approached by the offender and two co-offenders. The offender first grabbed a 13-year-old girl around her upper body and demanded her mobile phone. He then crossed to a traffic island where his co-offenders had detained the 16-year-old boy, and there he punched the boy in the face before shoving him into the path of an oncoming vehicle travelling at approximately 60 kilometres per hour.

The boy struck the car's windscreen and sustained serious injuries, including two broken legs, fractures to multiple bones, a liver laceration, concussion, and other significant trauma. The offender's wallet was stolen from the scene. The offender was arrested approximately two months later and had remained in custody since that date.

The two co-offenders, Clarke and McEwan, were each charged and sentenced separately in the Local Court for lesser offences. The offender before the District Court faced the more serious charge of aggravated robbery with grievous bodily harm under s 96 of the Crimes Act 1900, with an additional demand with menaces in company offence (s 99(2)) brought on a Form 1 (a mechanism by which an offender asks the court to take into account other charges without a separate conviction being recorded).

  • What was the appropriate sentence for aggravated robbery with grievous bodily harm under s 96 of the Crimes Act 1900, having regard to the Form 1 offence of demand with menaces in company?
  • Where did the offending sit on the range of objective seriousness for these offences?
  • Did the parity principle require the court to align this offender's sentence with those of the co-offenders sentenced in the Local Court?
  • What weight should be given to the offender's subjective circumstances, including his Indigenous background, age, cognitive functioning, and prospects of rehabilitation?

Decision

Objective seriousness: King SC DCJ assessed the robbery with grievous bodily harm as falling towards the midrange of objective seriousness. While grievous bodily harm can encompass much more severe injuries, the boy's injuries, including two broken legs and multiple other traumas, were serious. The judge noted it was fortunate the injuries were not life-threatening. The offences were largely spontaneous, though the group had crossed the street to confront the victims, who were simply going about their lives and had provided no provocation. The vulnerability of the victims, both children, was a significant factor. The Form 1 offence involving the 13-year-old girl, whom the offender physically accosted while demanding her phone, was placed at a level approaching but not reaching the midrange of seriousness.

Parity: The court rejected any meaningful parity argument. Clarke and McEwan were each sentenced to 12 months' imprisonment in the Local Court for materially different offences. Critically, neither was charged with aggravated robbery with grievous bodily harm, and the agreed facts in their proceedings made no reference to the offender having pushed the boy into the path of the vehicle. The offending for which this offender was sentenced was substantially more serious than that of either co-offender.

Subjective circumstances: The offender was 24 years old and of Indigenous background, having grown up in the Riverina with limited adult supervision, family instability, and early exposure to domestic violence. Psychological assessment placed his IQ in the borderline to low-average range. The court noted a history of drug use connected to his offending and acknowledged the systemic disadvantages reflected in his background. The offender had completed a Positive Lifestyles Program in custody and gave evidence on sentence. The court accepted a reasonable prospect of rehabilitation, contingent on addressing his drug use, and found special circumstances justifying a departure from the standard non-parole ratio. This was his first time in custody.

General and specific deterrence were identified as significant considerations, given the nature of the offending: a group robbery of children on a public street resulting in serious physical injury.

Orders Made

  • Total term of imprisonment of 4 years 6 months for the s 96 aggravated robbery with grievous bodily harm offence, with the s 99(2) Form 1 offence taken into account in that sentence.
  • Non-parole period of 2 years 6 months, reflecting special circumstances.
  • Sentence backdated to the date of arrest, 4 August 2018.
  • Non-parole period expiring 3 February 2021; full sentence expiring 3 February 2023.

Key Takeaways

  • The District Court confirmed that the parity principle does not require sentence alignment where co-offenders were charged and sentenced for materially lesser offences, particularly where the facts underpinning the more serious charge were absent from the co-offenders' proceedings entirely.
  • Aggravated robbery with grievous bodily harm resulting in two broken legs and multiple other injuries was assessed at the midrange of objective seriousness, on the basis that the injuries, though serious, fell towards the lower end of what "grievous bodily harm" can encompass.
  • A Form 1 offence is taken into account in the head sentence rather than attracting a separate penalty, and the court's reasoning reflected the additional gravity added by the demand with menaces offence against the 13-year-old victim.
  • Special circumstances were established by the combination of the offender's age, his first period of actual custody, and the need for an extended parole period to support reintegration into the community.
  • Indigenous background, disrupted upbringing, cognitive limitations, and systemic disadvantage were all treated as relevant subjective factors, though balanced against the significant deterrence considerations arising from public robberies targeting children.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61, 96, 99(2)

Cases:
- Thomson & Houlton (2000) 49 NSWLR 383