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District Court 6 February 2020

R v Artiel

[2020] NSWDC 106

Assault & violenceTheft & property
SENTENCING ROBBERY IN CIRCUMSTANCES OF AGGRAVATION WEAPON, BEING A KNIFE ON BAIL DURING OFFENDING HOMELESS AT TIME OF THE OFFENDING WHETHER HENRY GUIDELINE APPLIES

Citation: R v Artiel [2020] NSWDC 106
Court: District Court of New South Wales
Date: 6 February 2020
Judge: Hatzistergos DCJ

Background

A young offender pleaded guilty to one count of robbery in circumstances of aggravation under s 97(1) of the Crimes Act 1900 (NSW), carrying a maximum penalty of 20 years imprisonment. The offence involved entering a petrol station in Tempe in the early hours of 5 May 2019, producing a 20cm kitchen knife, and demanding cash and cigarettes from a lone night-shift employee. Between $600 and $700 in cash and five packets of cigarettes were taken.

The offender was identified through CCTV footage and phone records placing him near the scene. At the time of the offence, he was homeless, living out of his car, and was already on bail for a separate aggravated robbery charge. He was 17 years old at the time.

The sentencing proceeded on agreed facts. The offender gave evidence about his background, including a troubled home environment, early homelessness, substance use involving cannabis and Xanax, and the circumstances that led to him sleeping in his car at the time of the offending. A psychiatric report from Dr George Liangas, Child and Adolescent Psychiatrist, was tendered in support of the defence case.

  • Whether the objective seriousness of the offending fell below the mid-range for armed robbery offences
  • Whether the R v Henry guideline judgment applied to the sentencing exercise
  • Whether the offender's homelessness and circumstances of disadvantage were relevant mitigating factors, including under the principles in R v Bugmy
  • Whether significant rehabilitation since the offending justified a finding that community safety was better served by an Intensive Correction Order (ICO) rather than full-time custody

Decision

Hatzistergos DCJ accepted that the offending fell below the mid-range of objective seriousness. While the knife was produced and held pointing toward the victim, there was no explicit threatening language, no physical violence, and limited planning. The offender was armed in advance and wore a glove and hooded jacket, but the Crown conceded the overall planning was limited. The court was not satisfied the pre-robbery phone calls to the petrol station were made by the offender.

The court considered whether the R v Henry guideline judgment, which sets indicative sentencing ranges for robbery offences, applied. Having regard to subsequent case law and the particular circumstances, including the offender's youth, homelessness, and significant subjective case, the court treated the guideline as a reference point rather than a rigid constraint.

The offender's background was a central feature of the sentencing exercise. Drawing on the principles in R v Bugmy, the court recognised that the offender's exposure to family conflict, early homelessness, and substance use were relevant to moral culpability. The psychiatric evidence described parental abandonment, a chaotic home environment marked by his brother's aggression and mental health diagnoses, and trauma experienced while living on the streets. The court found these circumstances bore on the offender's decision-making at the time of the offending.

The court identified strong subjective factors in the offender's favour: his youth (he was 17 at the time), his early guilty plea, genuine remorse, engagement with treatment, and significant rehabilitation since the offence. The court concluded that the purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), including community protection and rehabilitation, were better served by a sentence of imprisonment served by way of Intensive Correction in the community rather than full-time custody.

Orders Made

  • The offender was convicted of the offence.
  • A sentence of 22 months imprisonment was imposed.
  • Pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the sentence is to be served by way of Intensive Correction Order (ICO) in the community, subject to the following conditions:
  • No further offences to be committed.
  • Supervision and guidance by Community Corrective Services (Sutherland) for such period as that service deems necessary, not exceeding the term of the order, with compliance with all reasonable directions required.
  • The offender to report to Community Corrections within 7 days.
  • Treatment condition: the offender to continue attending Dr Liangas and psychologist Mr Troy Spiers as recommended by them.
  • The offender to abstain from the consumption of illicit drugs.

Key Takeaways

  • A sentence of imprisonment for armed robbery with a knife does not automatically require full-time custody; the District Court held that where rehabilitation is significant and genuine, a sentence served by way of ICO can satisfy the purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Under R v Bugmy, early homelessness, family dysfunction, and substance use remain relevant to assessing an offender's moral culpability at sentence, including in serious offences involving weapons.
  • The R v Henry guideline for armed robbery sets a useful reference point, but courts retain discretion to depart from indicative ranges where the subjective case is sufficiently compelling, particularly where the offender is young and has demonstrated genuine rehabilitation.
  • Limited planning, absence of physical violence, and the knife being produced but not directed aggressively were accepted as factors reducing objective seriousness below the mid-range for this category of offence.
  • A strong subjective case, including youth, early guilty plea, remorse, psychiatric evidence addressing background trauma, and post-offence engagement with treatment, collectively supported a finding that community safety was better addressed outside full-time custody.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 7, 10A, 21A, 22

Cases
- R v Henry (1999) 46 NSWLR 346
- R v Bugmy (2013) 249 CLR 571
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102
- Murray v R [2013] NSWCCA 12
- R v Douer (2005) 159 A Crim R 154
- R v Zamagias [2002] NSWCCA 17
- R v SDM (2001) 51 NSWLR 530; [2001] NSWCCA 158
- R v Blackman and Walters [2001] NSWCCA 121
- R v Phillipe [2004] NSWCCA 2
- Legge v R [2007] NSWCCA 244
- MW v R [2010] NSWCCA 324
- Tammer-Spence v R [2013] NSWCCA 297
- Gardiner v R [2018] NSWCCA 27
- R v Papuni [2019] NSWDC 269
- R v Gersbach [2018] NSWDC 341