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District Court 7 July 2020

R v Dixon

[2020] NSWDC 646

Assault & violenceTheft & property
CRIME SENTENCE NOT PLANNED BREACH OF CONDITIONAL LIBERTY ABORIGINALITY ‘ BUGMY’ PRINCIPLES

Citation: R v Dixon [2020] NSWDC 646
Court: District Court of New South Wales
Date: 7 July 2020
Judge: Norrish QC DCJ

Background

The offender, a 27-year-old Aboriginal woman, pleaded guilty to aggravated robbery under s 95(1) of the Crimes Act 1900, an offence carrying a maximum penalty of 20 years imprisonment with no standard non-parole period. The offence occurred on 3 September 2019 in Waterloo, when the offender robbed a taxi driver of a money bag containing $200 and, in the course of that robbery, recklessly inflicted actual bodily harm on him.

The offender had no prior relationship with the victim. She entered the taxi and directed the driver to a location, claiming she had a card at home to pay. Once the driver stopped, she produced a knife concealed in her clothing and demanded money. A struggle followed, during which the driver's palm was cut by the knife and he was struck twice to the head. The injuries were relatively minor. CCTV footage from the cab and the daylight conditions made identification straightforward, and the offender was arrested shortly after.

Critically, the offender had been released on parole only approximately one month before committing this offence. That parole related to a 2016 conviction for robbery whilst armed with an offensive weapon. Her parole was revoked upon arrest, and she had remained in custody continuously from 25 September 2019.

  • What was the objective seriousness of the offending, having regard to the nature and degree of planning, the harm caused, and the vulnerability of the victim?
  • How should the aggravating factor of offending whilst on conditional liberty be weighed, and how could the court avoid impermissible "double counting" of that factor?
  • How should the offender's Aboriginality, profound background disadvantage, drug dependency, and mental health be addressed in the sentencing exercise, including under the principles in Bugmy v The Queen?
  • What weight should be given to the offender's guilty plea, contrition, and prospects of rehabilitation?
  • Whether special circumstances existed justifying a departure from the standard ratio between the non-parole period and the balance of sentence?

Decision

Norrish QC DCJ assessed the offending as falling below the middle range of objective seriousness for this type of offence, despite the Crown's submission to the contrary. The amount taken was small, the actual bodily harm was at the lower end of recklessness (the driver's hand wound resulted from the struggle rather than any deliberate act), and the offence, while not impulsive, was not planned in any meaningful sense. The offender had not sought to disguise herself, the location was well-populated in daylight, and the vulnerability ordinarily attaching to taxi drivers was given reduced weight in those circumstances.

The commission of the offence while on parole for a relevantly similar offence was identified as a significant aggravating factor under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999. The court was careful, following Callaghan v R, to avoid "double-dipping" by giving that factor impermissible weight in more than one aspect of the sentencing equation.

The court gave detailed attention to the offender's personal circumstances. Her criminal history dated back to childhood, and the judgment emphasised that this history had to be understood in the context of a life shaped by severe and systemic disadvantage entirely beyond her control, including disrupted education, financial hardship, repeated experiences of personal and sexual violence, a violent domestic relationship from the age of 19, and drug dependency since her mid-teens. Applying the Bugmy principles, the court recognised that profound Aboriginal disadvantage does not diminish with the accumulation of prior offences and must be given real weight in the sentencing process. The court accepted that the offender's drug dependency arose substantially from circumstances beyond her control, consistent with the majority's reasoning in R v Henry.

The guilty plea, evidence of contrition, and some insight into the offending were treated as mitigating factors. The court found special circumstances existed, justifying a non-parole period shorter than the statutory default ratio, noting the need for an extended period of supervision on release given the offender's complex needs and the rehabilitation programs available to her in custody.

Orders Made

  • The offender was convicted of aggravated robbery contrary to s 95(1) of the Crimes Act 1900.
  • Sentenced to imprisonment with a non-parole period of 20 months, commencing 28 December 2019 and expiring 27 August 2021.
  • Balance of sentence of 2 years and 4 months, expiring 27 December 2023.
  • Recommendation that the offender be admitted to the Mum Shirl Unit for psychological treatment upon classification.
  • Recommendation that the offender undertake the Intensive Drug and Alcohol Treatment Program at Dillwynia Women's Correctional Centre.

Key Takeaways

  • The District Court confirmed that the Bugmy principle, requiring courts to give genuine and ongoing weight to the effects of profound Aboriginal disadvantage, applies even where an offender has an extensive criminal history. The accumulation of prior offences does not extinguish the mitigating significance of that background.

  • Where drug dependency arises from circumstances beyond the offender's control, such as childhood trauma and experiences of violence, a sentencing court may treat that dependency as relevant to the subjective circumstances of the offender, even though drug dependency is not, of itself, a mitigating factor for offences of this kind.

  • Offending while on parole for a relevantly similar offence constitutes a significant aggravating factor under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999, but the court must take care not to use that factor to increase the sentence in more than one respect, consistent with the warning against "double-dipping" in Callaghan v R.

  • Assessing objective seriousness for aggravated robbery requires examination of multiple factors in combination, including the amount taken, the degree of planning, the character and level of any recklessness involved in causing harm, and the actual vulnerability of the victim in the specific circumstances of the offence.

  • Special circumstances justifying a reduced non-parole period ratio may be established where an offender's complex rehabilitative needs, including serious mental health and drug dependency issues, call for an extended supervisory period following release.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 95(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2), 21A(3)
- Mental Health Act (NSW)

Cases
- Blackman & Walters v R [2001] NSWCCA 121
- Bugmy v The Queen [2013] HCA 37
- Callaghan v R [2006] NSWCCA 58
- DPP v De La Rosa [2010] NSWCCA 194
- Millwood [2012] NSWCCA 2
- Munda v Western Australia [2013] HCA 38
- R v Henry (1999) 46 NSWLR 346
- R v Moffitt (1990) 20 NSWLR 114
- Thomson and Houlton v R [2000] NSWCCA 309
- Veen (No 2) [1988] HCA 14; 164 CLR 465
- Yardley v Betts (1979) 22 SASR 108