Citation: R v Marshall [2020] NSWDC 463
Court: District Court of New South Wales
Date: 18 June 2020
Judge: Haesler SC DCJ
Background
The offender, a man in his early thirties, pleaded guilty to Aggravated Robbery and Use Corporal Violence under s 95(1) of the Crimes Act 1900. By the time of sentencing, he had spent more than 70% of his adult life in custody, almost entirely for robbery offences. He had entered juvenile detention for robbery at age 16, and this offence was committed while he was on parole for a prior robbery.
The offence arose in January 2009 near Wollongong Railway Station. After a victim leaving a nearby hotel offered the offender a beer, the offender demanded the victim's wallet and, when the victim said he had none, punched him in the face causing a laceration under the right eye. The offender then took the victim's six-pack of beer. Police arrived within minutes and arrested the offender, who was visibly intoxicated.
The offender's background included an absent Aboriginal father who died while the offender was young, early exposure to illicit drug use as a teenager, and an established pattern of relapsing into alcohol use and robbery when faced with personal setbacks. On this occasion, he had been directed toward a residential drug rehabilitation program but was unable to complete the necessary detoxification steps to enter it, and instead effectively gave up on that pathway.
Legal Issues
- What sentence was appropriate for an aggravated robbery committed by an offender with an extensive prior history of robbery offences?
- How should the offender's commission of the offence while on parole affect the sentence?
- How should the court weigh deterrence, retribution, community protection, and the prospects of rehabilitation given the offender's institutionalisation and background?
- What discount applied for the early guilty plea?
- Whether a finding of special circumstances was warranted to extend the parole period beyond the statutory default.
Decision
Haesler SC DCJ characterised the offence as objectively serious despite the relatively minor injuries and small amount of property taken. The offender's lengthy criminal history meant the offence could not be treated as an uncharacteristic aberration. Following Veen v The Queen (No 2), the court held that the criminal history, while it could not produce a sentence disproportionate to the offence itself, justified additional weight on retribution and community protection. The court also drew guidance from the Henry guideline judgment on robbery sentencing.
The court addressed the parole breach directly. The offender's commission of the offence while on parole warranted harsher punishment, consistent with the principle that parole represents a clear promise of good behaviour in exchange for early release. To avoid double-counting, the court exercised its discretion to commence the sentence from the date of arrest rather than from the date of revocation of parole, following Callaghan v R.
The court considered at length the offender's background, his Aboriginal heritage and loss of connection to his father's family, and the effects of early institutionalisation. Applying the principles from Bugmy v The Queen, these factors were treated as relevant to the assessment of moral culpability. The court acknowledged the offender's frank evidence and expressed remorse, but noted that deterrence could not be ignored entirely even where past severe sentences had demonstrably failed to deter.
A 25% discount was applied for the early guilty plea under s 25D of the Crimes (Sentencing Procedure) Act. The court found special circumstances justifying a longer than usual parole period, given the offender's deep institutionalisation and the recognised need for structured support on release. A psychologist's report recommending targeted therapeutic programs including RUSH, Dialectical Behaviour Therapy, and EQUIPS was forwarded to Corrective Services with the warrant.
Orders Made
- The offender was convicted of Aggravated Robbery and Use Corporal Violence.
- Total sentence of 3 years and 2 months imprisonment.
- Non-parole period of 1 year and 8 months, commencing 24 August 2019 and expiring 23 April 2021.
- Balance of sentence of 1 year and 6 months to commence 24 April 2021.
- Total sentence to expire 23 October 2022.
- A copy of the psychologist's report (Exhibit 1) to be forwarded to Corrective Services with the warrant.
Key Takeaways
- The District Court confirmed that a prior criminal history involving the same type of offence cannot produce a disproportionate sentence, but does justify additional weight on retribution and community protection, consistent with Veen v The Queen (No 2).
- Committing an offence while on parole warrants harsher punishment; however, the precise commencement date of a new sentence involves a discretion that must be exercised to avoid double-counting aggravating factors, as confirmed in Callaghan v R.
- A background of disadvantage, including loss of connection to Aboriginal family, early exposure to drugs, and the effects of juvenile detention, remains relevant to moral culpability under Bugmy v The Queen, even where the offender's criminal history is extensive.
- Special circumstances justifying a reduced non-parole period relative to the total sentence may be found where an offender is deeply institutionalised and structured post-release supervision is considered essential to rehabilitation.
- The Henry guideline judgment on robbery offences operates as a non-prescriptive reference point in sentencing, to be weighed alongside all other relevant factors, rather than as a fixed formula.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 95(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 25D
Cases
- Bugmy v The Queen (2013) 249 CLR 571
- Callaghan v R [2006] NSWCCA 58
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- Veen v The Queen (No 2) (1988) 164 CLR 465