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District Court 15 April 2020

R v Manias

[2020] NSWDC 542

Assault & violenceTheft & propertyFirearms & weapons
CRIME ROBBERY ARMED WITH AN OFFENSIVE WEAPON BREACHES OF COMMUNITY CORRECTION ORDERS SUBJECTIVE MATTERS AGGREGATE SENTENCE

Citation: R v Manias [2020] NSWDC 542
Court: District Court of New South Wales
Date: 15 April 2020
Judge(s): King SC DCJ

Background

The offender, a young adult male aged 18 at the time of the offence, appeared for sentence on a charge of robbery armed with an offensive weapon under s 97(1) of the Crimes Act 1900, which carries a maximum penalty of 20 years' imprisonment. The charge arose from an incident on 7 September 2019 in Belmore Park, Haymarket, where the offender and a juvenile co-offender approached a young woman seated on a park bench and, with a kitchen knife pointed toward her, took $100 in cash.

In addition to the primary robbery charge, the offender was subject to seven Community Correction Orders (CCOs) imposed by a magistrate in the Local Court for earlier offences. Those earlier matters included common assault, contravening an apprehended violence order (AVO), larceny, possessing goods suspected of being stolen, and destroying or damaging property. The commission of the robbery constituted a breach of each of those CCOs.

Rather than referring the CCO breaches back to the Local Court for the original magistrate to revisit, the parties asked the District Court to deal with them directly alongside the robbery sentence. The court noted this was procedurally irregular but proceeded on the basis that a custodial sentence for the robbery was inevitable, which substantially shaped the approach to the CCO matters.

  • What objective seriousness attached to the robbery, and where did it sit within the range for offences of this type?
  • What subjective factors were relevant to sentencing, including the offender's age, background, and drug use?
  • What discount applied by reason of the guilty plea?
  • How should the CCO breaches be dealt with when brought before the District Court rather than the originating Local Court?
  • Whether the offender was eligible for referral to the Drug Court for assessment for a Compulsory Drug Treatment Correctional Order (CDTO).

Decision

The court characterised the robbery as a serious offence, though a "relatively typical" example of its kind. The offender had spent time in the park with a co-offender, both wearing hooded jumpers as a partial disguise, before approaching a vulnerable young woman with a kitchen knife. The court rejected the offender's claim that the knife was carried for personal protection, finding instead that he had attended the park with the knife intending to use it in a robbery. There was, however, only a limited degree of planning involved.

A 25 per cent discount was applied to reflect the utilitarian value of the guilty plea, consistent with the principles in R v Thomson; R v Houlton. The offender's youth (just 46 days past his 18th birthday at the time of the offence) and his history of significant drug dependency were treated as relevant mitigating factors, drawing on the principles in BP v The Queen and R v Henry & Ors regarding the relevance of youth and rehabilitation to sentencing.

The court imposed an aggregate sentence encompassing both the robbery and the CCO breach matters. Because a term of imprisonment was unavoidable for the robbery, the court's approach to the CCO breaches was substantially influenced by the need to avoid double punishment and to structure a coherent overall sentence. The court noted the procedural awkwardness of the District Court handling the CCO breaches directly, observing that the normal course would have been referral back to the originating magistrate, with any appeal then available to the District Court.

Having assessed the applicable criteria, the court found the offender eligible for referral to the Drug Court for assessment for a CDTO, citing the offender's entrenched drug use and the potential for intensive supervision, both in custody and upon release, to address it. The court endorsed the papers accordingly.

Orders Made

• Non-parole period of approximately 19 months and 22 days, with eligibility for parole on about 6 December 2021
• Referral to Drug Court for consideration of a Compulsory Drug Treatment Order (CDTO)

Key Takeaways

  • The District Court treated a robbery involving a kitchen knife, a disguise, and a vulnerable victim as a serious but "par for the course" example of armed robbery under s 97(1) of the Crimes Act 1900, carrying a 20-year maximum.
  • A 25 per cent guilty plea discount applied, consistent with the Thomson and Houlton utilitarian value principle, the plea having been entered at committal for sentence stage.
  • Where CCO breaches are brought before the District Court alongside a more serious charge, rather than being remitted to the originating Local Court, the sentencing court loses the ordinary appeal pathway from the Local Court and must fashion an appropriate sentence directly, a process the court described as procedurally irregular.
  • Youth, at just 46 days past the offender's 18th birthday, and entrenched drug dependency were recognised as relevant mitigating factors affecting moral culpability.
  • Eligibility criteria under the CDTO regime were satisfied, and the court referred the offender to the Drug Court for assessment, finding that intensive supervised treatment offered meaningful prospects for addressing the offender's long-term drug use.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(1) (robbery armed with an offensive weapon)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)

Cases
- BP v The Queen [2010] NSWCCA 159; (2010) 201 A Crim R 379
- Kentwell v The Queen (2014) 252 CLR 601
- R v Henry & Ors [1999] 46 NSWLR 346
- R v Thomson; R v Houlton [2000] 49 NSWLR 383
- Yildiz v The Queen [2020] NSWCCA 69