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District Court 4 August 2020

R v Mitchell

[2020] NSWDC 606

Assault & violenceTheft & propertyFirearms & weapons
CRIME SENTENCE ROBBERY ARMED WITH AN OFFENSIVE WEAPON.

Citation: R v Mitchell [2020] NSWDC 606
Court: District Court of New South Wales
Date: 4 August 2020
Judge: Colefax SC DCJ

Background

The offender, a 28-year-old man, appeared for sentence on a single charge of robbery armed with an offensive weapon under s 97(1) of the Crimes Act 1900 (NSW). The maximum penalty for that offence is 20 years imprisonment.

The offending occurred in the early hours of 29 May 2019 in Campbelltown. The victim, a 21-year-old university student, was walking back to campus after a late meal at a fast food outlet. The offender approached him, patted him down, produced a 15 to 20 centimetre knife, and demanded money. He took the victim's phone and wallet containing $100, then ordered the victim to hide in nearby bushes and threatened to stab him if he told anyone.

The offender had not left the area when the victim emerged from hiding. He then escorted the victim to a shopping centre ATM, where he verbally threatened him again and took a further $550. He also directed the victim to change the PIN on the stolen phone to a number he nominated. The offender was identified through DNA transferred during the pat-down, and through his own name and address, which he provided when using the stolen phone to call taxis within hours of the offence.

  • What sentence was appropriate for an armed robbery offence assessed as slightly below mid-range in objective seriousness?
  • What weight should be given to the offender's severely dysfunctional upbringing and significant mental health conditions in the sentencing exercise?
  • Whether special circumstances existed to justify varying the standard ratio between the non-parole period and the head sentence.
  • What discount applied to reflect the offender's early guilty plea?

Decision

Colefax SC DCJ assessed the offence as slightly below mid-range in objective seriousness for its type. The use of a knife as a threatening weapon, the sustained nature of the conduct across two separate incidents in the same evening, and the threat to stab the victim all featured in that assessment. The offender's extensive adult criminal history, including convictions for serious weapons offences committed within a week of this robbery, operated as an additional aggravating factor.

The judge gave detailed consideration to the offender's background. The offender had been removed from the care of two drug-addicted parents at age four and passed through approximately 40 foster placements between ages four and sixteen, some involving physical and emotional abuse. He had been in custody for most of his life since age 14, spending only 18 months in the community between the ages of 14 and 25. A psychologist's report identified multiple diagnosed conditions including bipolar 2 disorder, complex post-traumatic stress disorder, and borderline personality disorder, among others. The court found that this background reduced the significance of general deterrence as a sentencing consideration, though specific deterrence and community protection remained fully engaged.

The judge found special circumstances warranting a departure from the standard non-parole period ratio, concluding that a longer parole period would better support the offender's prospects of rehabilitation, which were described as guarded rather than reasonable. A 25 per cent discount was applied for the early guilty plea, reducing what would otherwise have been a seven-year head sentence to five years and three months.

Orders Made

  • Total term of imprisonment: 5 years and 3 months, backdated to 9 September 2019.
  • Non-parole period: 3 years and 3 months, expiring 8 December 2022.
  • Balance of term: 2 years, expiring 8 December 2024.
  • The offender to be assessed for suitability to participate in the compulsory drug treatment programme at Parklea.
  • The report of Dr Sharon Klemmer dated 24 July 2020 to accompany the warrant.

Key Takeaways

  • The District Court applied the R v Henry guideline judgment from the Court of Criminal Appeal, which remains the relevant sentencing guide for armed robbery offences under s 97(1) of the Crimes Act 1900 (NSW) in the absence of a standard non-parole period.
  • A severely dysfunctional upbringing, assessed in the manner directed by the High Court, operated to reduce the weight given to general deterrence, though it did not displace the sentencing purposes of specific deterrence and community protection.
  • Where an offender carries a threatening weapon and makes explicit verbal threats to use it, a court may treat the victim's ongoing fear throughout the entire episode as part of the single course of criminal conduct, even where the weapon is not visibly produced on each separate occasion.
  • Special circumstances were established on the basis that a longer parole period would better serve rehabilitation, justifying an adjustment to the standard head sentence to non-parole period ratio.
  • An early guilty plea attracted a 25 per cent discount, reducing the sentence from a notional seven years to five years and three months.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(1) (robbery armed with an offensive weapon)

Cases
- R v Henry (1999) 46 NSWLR 346 (Court of Criminal Appeal guideline judgment on armed robbery sentencing)