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District Court 8 September 2020

R v Alvarez

[2020] NSWDC 680

Assault & violenceTheft & propertyFirearms & weapons

Citation: R v Alvarez [2020] NSWDC 680
Court: District Court of New South Wales
Date: 8 September 2020
Judge: ML Williams SC DCJ

Background

The offender, a 27-year-old Dunghutti man, pleaded guilty to two counts of robbery in company under s 97(1) of the Crimes Act 1900, each carrying a maximum of 20 years imprisonment. The offences occurred on consecutive nights in October 2018 at two petrol stations near Queanbeyan, where the offender and a co-offender used a 40-centimetre knife to steal cash, cigarettes and electronic equipment from attendants. The offender's role differed between the two robberies: in the first he held the door; in the second he was the one wielding the knife.

The offender had no prior criminal record and no offences since his arrest. He was granted bail after six days in custody, during which he made a suicide attempt, and had been on bail for almost two years by the time of sentencing.

The subjective case was extensive. The court heard evidence from a therapist with ACT Health and a senior Kamilaroi community figure, both of whom gave uncontested testimony about the offender's remarkable rehabilitation since arrest. A psychologist's report documented a childhood marked by sexual assault, bullying, eating disorders, depression, and repeated suicide attempts, all set against a background of intergenerational trauma connected to the Stolen Generations.

  • What sentence was appropriate for two counts of armed robbery in company, taking into account the seriousness of the offences and the offender's highly mitigating personal circumstances?
  • What weight should be given to the offender's Aboriginal background and the principles from Bugmy v The Queen in the sentencing exercise?
  • Whether the circumstances were sufficiently exceptional to justify the sentence being served by way of an intensive corrections order (ICO) rather than full-time custody, consistent with the principles in R v Henry.

Decision

Williams SC DCJ accepted that the offences were objectively serious. A knife was produced in both robberies, attendants were threatened, and the offending was premeditated to the extent the same weapon was used across both incidents. The pleas attracted a 10% discount for count one and 25% for count two, reflecting the different timing of each plea.

The court gave substantial weight to the offender's subjective circumstances under the Bugmy principles, recognising that his profound childhood disadvantage, including sexual abuse, intergenerational trauma linked to the Stolen Generations, and entrenched substance misuse, directly bore on his moral culpability at the time of offending. At the time of the robberies he had been consuming multiple substances and was suffering from borderline personality disorder, which the psychologist found significantly impaired his decision-making. The court noted that the trigger for the offending was his sister informing him that her young children had been sexually abused, which provoked intense flashbacks to his own childhood trauma.

Against that background, the court found that the offender's rehabilitation since arrest was genuine and remarkable. Both character witnesses gave uncontested evidence that he had undergone profound change, had restored his connection to Aboriginal culture through the Bush Healing Farm program, and was now employed assisting others in drug rehabilitation and engaged in further study. The court expressed confidence he would not re-offend. The court also noted that sentencing statistics showed an ICO had been imposed in approximately 31.6% of comparable robbery in company cases, and that this, combined with the totality of the subjective case, justified departing from full-time custody.

The court imposed an aggregate sentence of two years and six months imprisonment (with indicative sentences of 24 months for count one and 20 months for count two), directed to be served by way of an intensive corrections order. An additional condition required the offender to continue drug rehabilitation and psychological treatment as recommended by his treating clinician.

Orders Made

  • The offender was convicted of each offence.
  • Indicative sentences: Count 1, 24 months; Count 2, 20 months.
  • Aggregate sentence of imprisonment of 2 years and 6 months imposed.
  • Sentence directed to be served by way of an intensive corrections order (ICO) pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999, commencing 8 September 2020.
  • The offender directed to report to the Officer in Charge at the Queanbeyan office of Community Corrective Services by 5pm on Tuesday 15 September 2020.
  • Standard ICO conditions applied, including no further offending and compliance with all directions of Community Corrective Services.
  • Additional condition: continue drug rehabilitation and psychological treatment as recommended by the treating clinician at ACT Health Alcohol and Drug Service.

Key Takeaways

  • Under the Bugmy principles, courts must take into account the particular background of Aboriginal offenders, including intergenerational trauma and childhood disadvantage, when assessing moral culpability, even for objectively serious offences such as armed robbery.
  • An intensive corrections order remains available for robbery in company under s 97(1) of the Crimes Act 1900, although R v Henry requires exceptional circumstances to justify a non-custodial disposition; sentencing statistics showed ICOs had been imposed in roughly 31.6% of comparable cases in the JIRS database.
  • Genuine, well-evidenced rehabilitation achieved during the period between arrest and sentence carries significant mitigating weight. Here, the court found that almost two years of sustained rehabilitation, supported by uncontested expert and community evidence, distinguished the offender's case.
  • The District Court treated the trigger for the offending, namely the offender's acute psychological response to learning of a family member's sexual abuse, as relevant context for assessing his mental state and moral culpability at the time, having regard to his own history of abuse.
  • Sentencing discounts for guilty pleas are calibrated to the timing of the plea: the differing discounts of 10% and 25% across the two counts reflected the different points at which each plea was entered.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1) (robbery in company)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 7(1)

Cases:
- Bugmy v The Queen (2013) 249 CLR 571
- R v Henry (1999) 46 NSWLR 346
- Gadsden v The Queen [2005] NSWCCA 453
- R v Blackman and Walters [2001] NSWCCA 121
- R v Govinden [1999] NSWCCA 118
- Tepania v The Queen [2018] NSWCCA 247
- Yardley v Betts (1979) 22 SASR 108