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District Court 24 April 2020

R v Jones

[2020] NSWDC 147

Assault & violenceTheft & property
SENTENCING RELEVANT FACTORS ON SENTENCE MENTALLY DISTURBED OFFENDER HARDSHIP AS A CHILD EARLY GUILTY PLEA REMORSE

Citation: R v Jones [2020] NSWDC 147
Court: NSW District Court
Date: 24 April 2020
Judge: Haesler SC DCJ

Background

In the early hours of 24 May 2019, the offender attended a Caltex service station in East Corrimal. After purchasing a lighter and an energy drink from a lone female attendant at the night service window, he returned and demanded money. When the attendant closed the window, he took a series of escalating steps to coerce compliance: he attempted to ignite the petrol bowser nozzle, succeeded in lighting a small pool of residual fuel on the ground, and then released the valve on a large LPG cylinder and threw the lighter at it. Neither the cylinder nor the bowser caused a catastrophic explosion. The attendant retreated and called police.

The offender was shirtless, bore visible tattoos, and made no attempt to conceal his identity. The entire incident was captured on CCTV. He had discharged himself from the psychiatric high-dependency unit at Royal Prince Alfred Hospital the previous day and told police he had no memory of any of the events. On 4 June 2019, he surrendered himself to Windsor police station accompanied by his father, in relation to both this incident and two earlier break-and-enter offences.

The offender pleaded guilty to attempted armed robbery under s 97(1) of the Crimes Act 1900, which carries a maximum penalty of 20 years imprisonment. He had been in custody since his arrest on 4 June 2019. The sentencing hearing proceeded by way of virtual court, with the offender appearing from the Metropolitan Remand and Reception Centre.

  • How should the offender's mental state at the time of the offence affect the assessment of objective seriousness and moral culpability?
  • What weight should be given to the offender's deprived childhood under the principles in Bugmy v The Queen?
  • How should remorse, the early guilty plea, and prospects for rehabilitation be weighed in the overall sentencing exercise?
  • Whether special circumstances existed, justifying a departure from the standard ratio between the non-parole period and the total sentence?
  • What significance, if any, attached to COVID-19 conditions in custody?

Decision

Objective seriousness and mental state. His Honour assessed the offending as serious in its nature: a vulnerable victim working alone at night was subjected to an implicit threat of catastrophic harm. However, the offender's mental state at the time was found to be causally connected to the commission of the offence, substantially reducing his moral culpability. Relying on Muldrock v The Queen and R v Way, the court held that mental state can affect the assessment of relative seriousness where it lessens culpability. The court was careful to avoid double-counting, and noted that intoxication by alcohol was not a relevant factor under s 428D of the Crimes Act 1900.

Deprived background. The court accepted that the Bugmy principles had some application. A childhood without positive parental guidance had left the offender vulnerable to maladaptive coping strategies, including excessive alcohol use. The court noted, however, that the prosecution's concession on Bugmy was only limited, and that the offender retained some capacity for moral agency.

Remorse and rehabilitation. The offender's initial letter to the court expressed acceptance of responsibility but did not specifically address the victim. In oral evidence, however, he apologised directly to the victim and showed genuine empathy for the fear he had caused. The court accepted this as authentic remorse and evidence of early steps toward rehabilitation. This reduced the weight to be given to specific deterrence. The court also noted that the offender's problems were amenable to community-based treatment, that he had a demonstrated capacity to work, and that engagement with a mental health plan on release made reoffending unlikely.

Special circumstances and sentence structure. The court made a significant finding of special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999, warranting a longer parole period than the standard proportion. Two reasons supported this: the offender's need for supervised support and treatment on release, and the requirement for some accumulation with the earlier sentences already imposed in the Local Court for the break-and-enter offences. The sentence was backdated to 4 August 2019, allowing for time already served.

Orders Made

  • The offender was convicted on his guilty plea to attempted armed robbery under s 97(1) of the Crimes Act 1900.
  • A finding of special circumstances was made under s 44 of the Crimes (Sentencing Procedure) Act 1999.
  • Non-parole period: 1 year and 4 months, commencing 4 August 2019 and expiring 3 December 2020.
  • Parole period: 1 year and 5 months, commencing 4 December 2020 and expiring 3 May 2022.
  • Total sentence: 2 years and 9 months.

Key Takeaways

  • Where a mental health condition is causally connected to an offence and substantially reduces the offender's moral culpability, it may affect the assessment of the relative objective seriousness of that offence, consistent with Muldrock and R v Way.
  • Under s 428D of the Crimes Act 1900, voluntary intoxication by alcohol is not a factor a sentencing court may consider when assessing the offender's mental state as a mitigating circumstance.
  • The Bugmy principles recognise that a deprived childhood can reduce moral culpability, but the District Court treated the application of those principles as a matter of degree, depending on the particular circumstances of the individual offender.
  • Authentic remorse, demonstrated progressively through the sentencing process, can reduce the weight given to specific deterrence even where an offender's initial communications to the court were incomplete in their expression of empathy toward the victim.
  • A significant finding of special circumstances can be warranted by the combination of an offender's rehabilitative needs requiring a longer supervised parole period and the structural requirement to accumulate the current sentence upon earlier sentences.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 97(1), 428D
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 30D, 44

Cases:
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- R v Verdins [2007] VSCA 102; 16 VR 269
- CD v R [2013] VSCA 95
- Brown v R [2020] VSC 60
- DPP v De La Rosa [2010] NSWCCA 194; (2010) 205 A Crim R 1
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704