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District Court 20 March 2020

R v Sebbens

[2020] NSWDC 213

Assault & violenceTheft & propertyFirearms & weapons

Citation: R v Sebbens [2020] NSWDC 213
Court: District Court of New South Wales
Date: 20 March 2020
Judge: M L Williams SC DCJ

Background

The offender, a 39-year-old man with a lengthy custodial history spanning 16 of the previous 20 years, appeared for sentence after pleading guilty to three offences arising from events on 3 April 2019. The offences involved two robberies at retail premises in Sydney's south-west and a further incident in which he confronted an off-duty police officer with a knife. A fourth offence, assaulting a police officer in execution of duty, was dealt with on a Form 1 (meaning it was taken into account when sentencing on a related charge rather than being prosecuted separately).

The first robbery occurred at a supermarket in Revesby, where the offender entered with his face covered and a knife held visibly in front of him, before grabbing approximately $300 from the open cash register. Around 20 minutes later, he attempted a second robbery at an Australia Post outlet in Panania, where he jumped the counter and removed the entire cash register after the three employees fled to a back office. Later that night, police attending his home found the stolen register, the knife, and clothing worn during the offences hidden in his garage.

The offender was subject to a section 9 good behaviour bond at the time of the offending, imposed alongside imprisonment terms at Nowra Local Court in June 2018. Both the Crown and defence agreed that full-time imprisonment was the only appropriate outcome.

  • What was the appropriate objective seriousness of the armed robbery, assessed against the guideline in R v Henry (1999) 46 NSWLR 346?
  • How should the offender's Bugmy-type background (significant childhood deprivation and dysfunction) affect the assessment of his moral culpability?
  • What weight, if any, should be given to diagnosed mental illness (schizophrenia, ADHD, PTSD) and substance use disorder where no causal connection to the offending was established?
  • What discount applied for the early guilty plea?
  • Whether special circumstances existed to justify adjusting the ratio of non-parole period to head sentence.
  • What sentence was appropriate for breach of the section 9 good behaviour bond?

Decision

Objective seriousness. The parties disagreed on how to classify the armed robbery under the Henry guideline. The Crown argued it was a typical Henry armed robbery; the defence submitted it fell significantly below the guideline range. His Honour accepted the Crown's characterisation of the offence as broadly typical, noting that while the offender made no verbal threats, the visible knife made any demand implicit. The Australia Post robbery was accepted to be towards the low end of objective gravity, and the armed-with-intent offence (together with the Form 1 assault) was placed between the low and mid-range, given its brief duration.

Subjective matters. The court accepted that the offender's background engaged the full range of Bugmy considerations, meaning his deprived and dysfunctional upbringing reduced his moral culpability even in the face of a very extensive criminal record. The court also accepted the diagnoses of schizophrenia, ADHD, substance use disorder, and PTSD, but noted there was no established causal connection between those conditions and the offending. The offending was attributed more directly to funding a drug addiction. The court characterised prospects of rehabilitation as guarded, at least, consistent with the defence's own concession.

Plea discount and special circumstances. A 25% discount was applied to reflect the guilty plea. Special circumstances were found, given the risk of institutionalisation as the offender approached 40 and the need for an extended period of strict supervision on release. The court noted the offender had already received findings of special circumstances on two previous occasions, and indicated that the allowance this time should not be significant.

Bond breach. The section 9 bond was revoked. His Honour imposed a separate fixed term of three months for the breach, with one month of accumulation, running from the date of arrest rather than the commencement of the aggregate sentence.

Orders Made

  • The offender was convicted of each offence.
  • Indicative sentences imposed:
  • Sequence 001 (armed robbery): 3 years 8 months
  • Sequence 004 (robbery): 3 years
  • Sequence 005 (armed with intent, incorporating Form 1 assault on police): 18 months
  • Aggregate sentence of imprisonment of 4 years 2 months, commencing 3 May 2019.
  • Non-parole period of 2 years 10 months, expiring 2 March 2022.
  • Special circumstances found.
  • Section 9 bond revoked; fixed term of 3 months imprisonment imposed from 3 April 2019, expiring 2 July 2019.

Key Takeaways

  • The District Court applied the Bugmy v The Queen principle to reduce moral culpability based on the offender's severely deprived childhood, even where the offender had an extensive prior record of violence and dishonesty. The Bugmy considerations do not diminish with the accumulation of convictions.
  • A diagnosis of serious mental illness does not automatically operate as a mitigating factor. Where no causal connection between the mental illness and the offending could be established, the court treated the diagnoses as relevant background but not as a basis for significant mitigation.
  • Under the R v Henry guideline, an armed robbery involving a visible knife and an implicit demand was characterised as broadly typical, even where the offender made no explicit verbal threats. The absence of verbal threats did not bring the offence below the guideline range.
  • A 25% discount for an early guilty plea was applied in circumstances where the plea was entered at an appropriate stage, consistent with established sentencing practice.
  • Special circumstances can be found to extend the parole period even where the offender has received similar findings previously. Here, the risk of institutionalisation and the need for extended post-release supervision at an older age justified the finding, though the court signalled only a modest adjustment was warranted.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 60(1), 94(a), 97(1), 114(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 37

Cases
- Bugmy v The Queen (2013) 249 CLR 571
- R v Henry (1999) 46 NSWLR 346
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146