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District Court 9 March 2020

R v Madar

[2020] NSWDC 185

Assault & violenceTheft & propertyFirearms & weapons
CRIME SENTENCE ROBBERY ARMED WITH AN OFFENSIVE WEAPON

Citation: R v Madar [2020] NSWDC 185
Court: District Court of New South Wales
Date: 9 March 2020
Judge: Colefax SC DCJ

Background

The offender, a 36-year-old man, appeared for sentence on a single count of robbery armed with an offensive weapon, contrary to s 97(1) of the Crimes Act 1900 (NSW). The offence occurred on 24 September 2018 at a service station in Ingleburn, where the offender entered with a 30-centimetre knife and demanded cash and cigarettes from a lone console operator. He took approximately 63 packets of cigarettes (valued at just under $2,500) and just over $900 in cash.

At the time of the offence, the offender was subject to three Local Court orders, including a s 9 bond and two suspended sentences. He committed the offence in the company of another man after both had consumed illegal drugs.

The offender had a deeply troubled background. He suffered serious physical and sexual abuse at the hands of his father from around the age of eight, ran away from home at ten, and began using cannabis and alcohol from that same age. He had no formal treatment for his drug dependency or for the underlying childhood trauma, and had been a chronic drug user until his arrest in 2018.

  • What was the appropriate sentence for the offence of armed robbery under s 97(1) of the Crimes Act 1900 (NSW), having regard to objective seriousness and the relevant guideline judgment in R v Henry?
  • To what extent did the offender's childhood trauma and resulting drug dependency reduce his moral culpability, consistent with the High Court's decision in Bugmy v R?
  • Whether special circumstances existed to justify varying the standard ratio between the non-parole period and the head sentence.
  • What discount was appropriate for the offender's guilty plea, past assistance, and agreement to provide future assistance?

Decision

Colefax SC DCJ assessed the objective seriousness of the offence as falling roughly midway between the bottom and middle of the range for offences of its kind. Three aggravating factors applied: the offender was on conditional liberty at the time, he acted in company, and the victim was a vulnerable person working alone at night.

The court accepted the psychologist's report and the offender's sworn evidence about his background without challenge from the Crown. Applying Bugmy v R, the court found that the offender's profoundly dysfunctional upbringing, including sustained childhood sexual abuse by his father, materially reduced his moral culpability. The court was satisfied that his long-term drug use from the age of ten was a direct consequence of attempting to self-medicate the trauma he experienced as a child. As a result, the principles of general and specific deterrence, while still applicable, could not be given their full weight.

In mitigation, the court noted the offender's expressed remorse (including an unsolicited written apology to the service station owner), his demonstrated abstinence from illegal drugs while in custody, his willingness to work in custody, and what the court described as reasonable prospects of rehabilitation if he received sustained treatment for his childhood trauma. A base term of five years' imprisonment was reduced by 35 percent (comprising 10 percent for the guilty plea, 10 percent for past assistance, and 15 percent for future assistance), producing a head sentence of three years and three months.

Special circumstances were found to justify a longer parole period, given that this was the offender's first time in custody and that effective rehabilitation would require extended supervision on release. The court also exercised a deliberate act of leniency by backdating the sentence to the date of arrest on 16 October 2018, rather than the later date proposed by the Crown.

Orders Made

  • Head sentence of 3 years and 3 months imprisonment, backdated to commence 16 October 2018.
  • Non-parole period of 1 year and 8 months, commencing 16 October 2018 and expiring 15 June 2020.
  • Balance of term of 1 year and 7 months, commencing 16 June 2020 and expiring 15 January 2022.
  • Special circumstances found, varying the standard non-parole period ratio.
  • 35% sentencing discount applied (10% plea, 10% past assistance, 15% future assistance).

Key Takeaways

  • Under Bugmy v R, evidence of severe childhood trauma, including sexual and physical abuse, can reduce an offender's moral culpability and limit the weight given to general and specific deterrence, even in cases involving serious violent offending.
  • The District Court treated long-term drug dependency arising directly from childhood trauma as a relevant mitigating consideration, distinct from voluntary or recreational drug use.
  • A sentencing court retains a discretion to backdate the commencement of a sentence to the date of arrest as an act of conscious leniency, even where the prosecution proposes a later start date.
  • Special circumstances justifying a reduced non-parole period may be found where an offender has no prior custodial experience and rehabilitation is likely to require sustained support during an extended parole period.
  • The guideline judgment in R v Henry (1999) 46 NSWLR 346 remains the relevant reference point for sentencing armed robbery offences under s 97(1) of the Crimes Act 1900 (NSW), in the absence of a standard non-parole period.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1) (robbery armed with an offensive weapon)

Cases:
- R v Henry (1999) 46 NSWLR 346 (guideline judgment for armed robbery sentencing)
- Bugmy v R [2013] 249 CLR 571 (High Court authority on the sentencing relevance of deprived or abusive backgrounds)