Citation: R v Matthews [2020] NSWDC 354
Court: District Court of New South Wales
Date: 16 March 2020
Judge(s): Payne DCJ
Background
The offender, a 24-year-old Aboriginal man, appeared before the District Court for sentencing on one count of armed robbery contrary to s 97(1) of the Crimes Act 1900, which carries a maximum penalty of 20 years' imprisonment. He also asked the Court to take into account two related offences on a Form 1 document: a larceny and malicious damage at a hotel gaming room, committed five days before the primary offence.
The armed robbery took place at a small service station in Werris Creek on 23 March 2019. The offender entered the shop while the attendant was counting the day's takings, produced a large kitchen knife approximately 30 centimetres in length, and demanded money. He took approximately $500 to $600 from the till. The victim was not physically injured. At the time of the offence, the offender was on bail and subject to a condition requiring him to reside at a residential rehabilitation facility.
Following the robbery, police located the offender eight days later concealed in the boot of a vehicle during execution of a search warrant. He threatened officers with a knife for approximately an hour, lit a small fire in the boot, and was ultimately arrested after becoming dehydrated and surrendering the knife.
Legal Issues
- What sentence was appropriate for armed robbery under s 97(1) of the Crimes Act 1900, applying the guideline judgment in R v Henry (1999) 46 NSWLR 346?
- What weight should be given to aggravating factors, including breach of conditional liberty?
- How should the offender's subjective circumstances be weighed, including his Aboriginality, background disadvantage, mental health, and the fact that this was his first full-time custodial sentence?
- Whether special circumstances existed justifying an extended parole period?
- What discount applied for the plea of guilty?
Decision
Payne DCJ applied the guideline judgment of R v Henry systematically, working through each relevant factor. Several features of that guideline applied: the offender was a young man with limited prior criminal history; the weapon was a knife capable of causing serious injury or death; planning was minimal; there was a genuine threat of violence but no actual physical violence; and the victim was a service station attendant, a category expressly recognised as vulnerable under s 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999. His Honour was careful not to double-count the victim's vulnerability, noting it was already embedded in the Henry guideline.
The breach of bail, which required the offender to reside at a residential rehabilitation facility, was treated as an aggravating factor. The relatively small amount taken was acknowledged as a mitigating consideration. General deterrence was identified as a significant sentencing objective in light of the objective seriousness of the offence.
On subjective matters, the Court considered the offender's Aboriginal background and the principles from Bugmy v The Queen [2013] HCA 37, which recognise that profound disadvantage experienced by Aboriginal offenders may reduce moral culpability. The Court also considered a psychological assessment, which found the offender was at high risk of reoffending and did not establish remorse on the balance of probabilities. Prospects of rehabilitation were described as guarded. The Court declined to make a positive or negative finding on likelihood of reoffending, treating the matter as neutral.
Special circumstances were found, given that this was the offender's first full-time custodial sentence, his age, and his need for treatment and support in the community upon release. The allowance made for special circumstances was six months. A 25 per cent discount applied for the early guilty plea, consistent with R v Thomson and Houlton (2000) 49 NSWLR 383.
Orders Made
- The offender was convicted of armed robbery contrary to s 97(1) of the Crimes Act 1900.
- The Form 1 offences (larceny and malicious damage) were taken into account.
- A non-parole period of 2 years and 3 months, commencing 26 March 2019 and expiring 25 June 2021.
- A total term of 3 years and 9 months, commencing 26 March 2019 and expiring 25 December 2022.
- Special circumstances were found; allowance of 6 months applied.
Key Takeaways
- The District Court applied the R v Henry guideline systematically, matching each enumerated factor to the facts before treating objective seriousness and general deterrence as the primary sentencing drivers for the s 97(1) offence.
- Breach of conditional liberty (in this case, bail with a residential rehabilitation condition) was treated as a statutory aggravating factor under the Crimes (Sentencing Procedure) Act 1999, increasing the overall sentence.
- Under Bugmy v The Queen, an offender's Aboriginal background and history of profound disadvantage are relevant to the assessment of moral culpability, and the sentencing court is required to take those circumstances into account even where rehabilitation prospects remain guarded.
- A 25 per cent utilitarian discount for an early guilty plea was applied consistently with R v Thomson and Houlton, with the court distinguishing this from any additional reduction for remorse, which was not established on the evidence.
- Special circumstances justifying a proportionally longer parole period can be found where an offender is young, serving their first full-time custodial sentence, and has identified treatment needs on release, even where reoffending risk is assessed as high.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 21A(2)(l)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), Part 9
Cases
- R v Henry (1999) 46 NSWLR 346
- Bugmy v The Queen [2013] HCA 37; 249 CLR 571
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v Murray (unrep, 11/9/86, NSWCCA)
- R v Valentini (1989) 46 A Crim R 23