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District Court 28 September 2020

R v Kenworthy

[2020] NSWDC 572

Assault & violenceTheft & property
CRIME

Citation: R v Kenworthy [2020] NSWDC 572
Court: District Court of New South Wales
Date: 28 September 2020
Judge(s): Adams QC ADCJ

Background

The offender, a 19-year-old Aboriginal man, appeared before the District Court for sentencing on a charge of robbery in circumstances of aggravation, specifically the use of corporal violence, contrary to s 95(1) of the Crimes Act 1900 (NSW). The offence carries a maximum penalty of 20 years imprisonment.

On the night of 16 September 2019, the offender entered a tobacconist shop shortly before closing time, wielding a stick approximately three feet long. He demanded money from the sole employee, struck him on the side of the face with the stick, and took between $2,000 and $3,000 in cash. A physical struggle followed during which the victim retained his mobile phone and the offender fled. DNA evidence from a cap left at the scene led to the offender's arrest on 15 October 2019.

The offender had pleaded guilty in the Local Court and was entitled to a 25% discount on any sentence of imprisonment. He had spent 10 months in presentence custody. He was also subject to an existing Control Order arising from earlier convictions for sexual intercourse without consent and common assault.

  • What was the appropriate sentence for robbery in circumstances of aggravation, taking into account the offender's youth, cognitive functioning, intoxication, and prospects for rehabilitation?
  • Did the offender's subjective circumstances, including cognitive deficits, emotional state, and intoxication, reduce his moral culpability?
  • Were there special circumstances justifying a departure from the statutory ratio between the non-parole period and the balance of the term under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW)?
  • What weight should be given to the objective seriousness of the offence relative to the range established in R v Henry (1999) 46 NSWLR 346?

Decision

Adams QC ADCJ assessed the objective seriousness of the offence as sitting towards the lower end for a charge under s 95(1). Although the offence involved a weapon and a physical blow causing injury, the court found that the particular circumstances did not place it in the more serious range of such offending.

The court gave significant weight to the offender's subjective circumstances. Psychological evidence from Dr Peter Ashkar indicated the offender functioned at the "extremely low" level (second percentile) in executive decision-making and abstract reasoning. Combined with his anger at his father's return to custody and his consumption of alcohol and an unfamiliar benzodiazepine (Xanax) on the night, these factors materially reduced his moral culpability. The court accepted that the offence was an aberration rather than a reflection of entrenched criminal behaviour.

The court found the offender to be genuinely remorseful and concluded that, with family support, employment, and appropriate supervision, he was unlikely to reoffend. His ongoing plumbing apprenticeship, his employer's offer of post-release work, his involvement in sport, and his community connections through the Redfern Land Council were all identified as positive rehabilitative factors. The emphasis on rehabilitation for young offenders, the court observed, reflects recognition that increased maturity can support pro-social development.

Special circumstances were found to exist, justifying a longer-than-standard period of post-release supervision relative to the non-parole period. The court also noted the impact of pandemic-related restrictions on conditions in custody as a relevant consideration.

Orders Made

  • A starting sentence of three years imprisonment, discounted by 25% to a term of two years and three months, commencing 15 October 2019.
  • A non-parole period of one year, making the offender eligible for consideration for parole release from 14 October 2020.

Key Takeaways

  • The District Court confirmed that, even where a guideline judgment such as R v Henry posits a young offender, the specific subjective circumstances of the individual offender before the court must still be carefully assessed and given appropriate weight.
  • Significantly below-average cognitive functioning, particularly in executive decision-making, can qualify an offender's moral culpability for an offence of this kind when that deficit is supported by expert psychological evidence.
  • Where intoxication by alcohol and an unfamiliar drug disinhibited an offender who had no established pattern of substance abuse, the court treated this as a factor bearing on culpability rather than simply as an aggravating circumstance.
  • Special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) can be established by a combination of factors, including cognitive deficits, youth, and the need for extended post-release supervision to support rehabilitation.
  • Pandemic-related conditions in custody, including restrictions on prisoner movement and the absence of face-to-face visits, were treated as a relevant consideration in fixing the non-parole period.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 95(1) (robbery in circumstances of aggravation)
- Children (Criminal Proceedings) Act 1987 (NSW), s 33(1)(g) (Control Order)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44 (statutory ratio between non-parole period and total sentence)

Cases:
- R v Henry (1999) 46 NSWLR 346 (guideline judgment on robbery sentencing)