AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 28 September 2020

R v Kenworthy

[2020] NSWDC 584

Assault & violenceTheft & property
CRIME

Citation: R v Kenworthy [2020] NSWDC 584
Court: District Court of New South Wales
Date: 28 September 2020
Judge(s): Adams QC ADCJ

Background

A 19-year-old offender pleaded guilty to robbery in circumstances of aggravation, namely the use of corporal violence, contrary to s 95(1) of the Crimes Act 1900 (NSW). The offence carries a maximum of 20 years' imprisonment and has no standard non-parole period.

The offence occurred late at night at a tobacconist in Pyrmont. The offender entered the shop wearing a disguise and carrying a roughly metre-long stick, demanded cash, struck the employee across the face with the stick, took several thousand dollars from the till, and then physically struggled with the employee before fleeing. DNA recovered from a cap left at the scene linked the offender to the robbery.

At the time of sentencing, the offender was already subject to a Control Order under the Children (Criminal Proceedings) Act 1987 for prior offences including sexual intercourse without consent, and had also been sentenced to imprisonment for an escape from lawful custody on the day after the robbery.

  • What was the appropriate starting sentence given the objective seriousness of a s 95(1) aggravated robbery involving physical violence?
  • To what extent did the offender's youth, cognitive functioning, intoxication, and personal circumstances reduce his moral culpability?
  • Whether special circumstances existed to justify a departure from the statutory non-parole period ratio under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), in favour of a longer period of supervision on release?
  • What discount applied for the early guilty plea, and how was pre-sentence custody to be accounted for?

Decision

The District Court assessed the offence as falling towards the lower end of objective seriousness for a s 95(1) robbery. Although violence was used (a blow to the victim's face causing a bleeding scratch and broken reading glasses), the court noted the circumstances did not place this offence among the most serious examples of its kind.

Adams QC ADCJ placed significant weight on the offender's subjective circumstances. Psychological evidence from Dr Peter Ashkar identified very low executive functioning, particularly in abstract reasoning and inhibition, placing the offender at the second percentile in those domains. Combined with his anger over his father's return to prison, inexperienced use of Xanax on the night, and consumption of six to ten beers, the court found the offender's decision-making was substantially disinhibited. These factors qualified, but did not eliminate, his moral culpability.

The court accepted that the offender was genuinely remorseful and that the offence was an aberration. Positive factors, including a third-year plumbing apprenticeship with an employer willing to re-engage him, involvement in rugby league at a high level (including a Penrith Panthers scholarship), community involvement through the Redfern Land Council, and family support, all pointed strongly to rehabilitation. The court emphasised that, while youth cannot licence criminal conduct, it is in the public interest to support rehabilitation where there is a reasonable basis to do so.

Special circumstances were found to justify a non-parole period shorter than the statutory proportion, on the basis that a longer supervised parole period would better support the offender's rehabilitation. The pandemic's impact on prison conditions, including restricted movement and no face-to-face visits, was also noted as relevant to the non-parole period assessment.

Orders Made

  • Starting sentence of three years' imprisonment, discounted by 25% for the early guilty plea to a term of two years and three months.
  • Sentence to commence 15 October 2019 (date of arrest).
  • Non-parole period of one year, making the offender eligible for release on parole on 14 October 2020.

Key Takeaways

  • The District Court confirmed that, even where guideline judgments (such as R v Henry) presuppose a young offender, the actual individual circumstances of a young offender must still be fully examined and given appropriate weight at sentencing.
  • Cognitive impairment falling short of a diagnosable psychiatric condition can nonetheless reduce moral culpability where psychological evidence demonstrates materially below-average executive functioning relevant to the offending conduct.
  • Special circumstances warranting departure from the statutory non-parole period ratio can be established by combining youth, limited cognitive functioning, genuine prospects of rehabilitation, and the need for extended post-release supervision.
  • An early guilty plea in the Local Court attracted a 25% discount on the sentence of imprisonment, consistent with the applicable sentencing framework.
  • Adverse prison conditions arising from the COVID-19 pandemic were treated as a relevant factor in calibrating the non-parole period, reflecting the court's recognition that custodial conditions can bear on the overall sentencing assessment.

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 (standard non-parole period provisions)

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