Citation: R v Willis [2020] NSWDC 135
Court: District Court of New South Wales
Date: 27 February 2020
Judge: Haesler SC DCJ
Background
The offender robbed a female employee working alone at a BWS liquor store in Wollongong on 5 August 2019. He produced a Stanley knife, directed her to lie on the floor, and took $900 in cash. He was arrested and returned to custody on 17 August 2019.
The offence was committed while the offender was on parole for a prior armed robbery of the same store, a sentence the same judge had imposed in 2017. He had been released to parole on 26 May 2019, meaning he had been at liberty for less than three months before committing the new offence.
The offender's background was one of profound deprivation. His mother died by suicide when he was nine, his father was violent, and he was placed in multiple foster homes. He spent most of his teenage years in juvenile detention and, as an adult, had spent only brief periods in the community before reoffending. His time in Queensland followed a similar pattern. A promising opportunity to take up his first real job was lost when information about his history was inadvertently disclosed to the prospective employer, and he gave up shortly afterwards, committing the robbery in circumstances the judge described as almost symbolic: a deliberate act to secure his return to gaol.
Legal Issues
- What sentence was appropriate for armed robbery under s 97(1) of the Crimes Act 1900, taking into account the offender's significant criminal history, the fact the offence was committed on parole, and the offender's profoundly deprived background?
- What weight should be given to the offender's subjective circumstances, including his entrenched institutionalisation and reduced moral culpability, in moderating the sentence?
- Whether special circumstances existed to justify adjusting the ratio between the non-parole period and the total sentence.
- How to deal with the breach of the Community Corrections Order arising from a separate offence of hindering a police officer.
Decision
Haesler SC DCJ imposed a substantial custodial sentence, acknowledging that the offence required significant punishment despite the considerable weight given to the offender's subjective case. The judge accepted that the offender's moral culpability was lower than that of many offenders sentenced for similar crimes, because his background of profound deprivation had denied him the opportunity to develop ordinary moral and social resources. The offence was characterised as "almost symbolic," a deliberate means of returning to the only environment the offender knew.
The judge applied the Henry guideline judgment but noted it is not prescriptive, emphasising that every offence and offender requires individualised treatment. The primary sentencing considerations were identified as appropriate punishment and community protection. Full weight was given to the early guilty plea, the offender's remorse, and his facilitation of the course of justice, reducing what would otherwise have been a five-year sentence.
The Court of Criminal Appeal decisions in Jackson and Jinette were noted for the principle that courts should structure sentences, even for repeat offenders, to allow the possibility of parole and supervision for as long as practicable. The judge gave this principle only limited weight given the extent to which other factors had already moderated the sentence. A finding of special circumstances was made to allow a modest adjustment to accommodate the accumulation of sentences and to extend the period of supervision on release.
The judge expressed frank despair at the offender's trajectory, observing that while the time had not yet come to simply incapacitate him for the maximum period proportionate to the offence, that point was not far away. The judgment strongly encouraged the offender to engage with programs available in custody, including the Positive Lifestyle Program and EQUIPS programs, as preconditions to any realistic prospect of parole and eventual rehabilitation.
Orders Made
- Breach of Community Corrections Order (resist or hinder police officer in execution of duty): Fixed term of imprisonment of one month, commencing 17 September 2019.
- Armed robbery with offensive weapon (s 97(1) Crimes Act 1900): Non-parole period of two years and seven months, commencing 17 October 2019, with eligibility for parole from 16 May 2022. Parole period of one year and two months. Total sentence of three years and nine months.
Key Takeaways
- The District Court confirmed that even where an offender's background of profound deprivation significantly reduces moral culpability, armed robbery committed against a lone victim using a bladed weapon requires a substantial custodial sentence.
- A conviction for armed robbery carries a maximum of 20 years' imprisonment under s 97(1) of the Crimes Act 1900, and the Henry guideline applies, though it is not prescriptive: each offence and offender must receive individualised treatment.
- Entrenched institutionalisation can reduce an offender's moral culpability and inform the structure of a sentence, but its mitigating effect is limited where the sentence has already been substantially moderated on other subjective grounds.
- Under the principles in Jackson and Jinette, courts should endeavour to structure sentences so that even recidivist offenders retain the possibility of earning parole and remaining under supervision for as long as practicable.
- Committing an offence on parole and while subject to a Community Corrections Order are aggravating factors, but the judge took care not to double-count them when synthesising the overall sentence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 97(1) (robbery armed with offensive weapon, maximum 20 years' imprisonment)
Cases:
- Henry v R (1999) 46 NSWLR 346 (guideline judgment on armed robbery sentencing)
- Jackson v R [2010] NSWCCA 162 (sentencing structure for repeat offenders to preserve parole eligibility)
- Jinette v R [2012] NSWCCA 217 (same principle applied to entrenched recidivists)