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District Court 16 November 2020

R v Russell

[2020] NSWDC 869

Assault & violenceDrugsTheft & property
CRIME SENTENCE ROBBERY

Citation: R v Russell [2020] NSWDC 869
Court: District Court of NSW
Date: 16 November 2020
Judge: Bourke SC DCJ

Background

The offender, Damian Russell, appeared for sentencing on three principal offences arising from a series of criminal acts committed over three days in January 2020. The offences included two robberies and one count of taking a motor vehicle with an occupant onboard, together with additional matters dealt with on a Form 1 document and a section 166 certificate.

The offending began on 4 January 2020 when the offender stole a Ford XR8 from a driveway in Clyde, then drove dangerously on Parramatta Road and the M4 motorway. That same afternoon he robbed a Priceline pharmacy in Richmond, taking $235 from a 17-year-old employee. That evening, he stole a Lexus from a McDonald's carpark and used it to rob a 15-year-old drive-through worker, grabbing her wrist and pushing her into a wall during the offence.

The final incident occurred on 6 January 2020, when the offender demanded that a woman exit her Honda Civic in Parramatta and drove it away. The vehicle immobilised itself about 40 metres from the scene, and the offender was arrested by police later that evening. He had pleaded guilty at an early stage and received a 25% discount on sentence for the utilitarian value of that plea.

  • The appropriate aggregate sentence for two robbery offences and one offence of taking a motor vehicle with an occupant onboard, together with concurrent or related Form 1 and section 166 matters
  • The objective seriousness of unarmed robbery offences, and the relevance of the guideline judgment in R v Henry and Ors to non-aggravated robberies
  • The weight to be given to the offender's background, including his history of drug dependency, in mitigation
  • Whether the offender met the criteria of an "eligible convicted offender" under the Drug Court Act 1998 for referral to the Drug Court

Decision

His Honour assessed the objective seriousness of the two robberies by reference to the Court of Criminal Appeal's guideline in R v Henry and Ors (1999) 46 NSWLR 346 and the subsequent decision in R v Black [2001] NSWCCA 41. His Honour expressly noted that the Henry guideline concerned armed robbery, and that its four-to-five-year sentencing range did not directly apply to Mr Russell's unarmed offences. The guideline nonetheless provided some assistance by reference to relevant factors, which were considered in a qualified way.

The objective seriousness of the carjacking offence (taking a motor vehicle with an occupant onboard) was assessed in light of the standard non-parole period of three years prescribed for that offence. The victim, who was seated in her car in a public street, was confronted and ordered out in an angry tone before the offender took the vehicle. The car's immobilising function prevented the offender from going far, which the court took into account.

The offender's significant history of drug dependency was treated as a relevant mitigating factor under the principle in Bugmy v The Queen [2013] 249 CLR 571, which recognises the connection between deprivation, disadvantage, and offending. His Honour found that the offending was linked to the offender's long-term drug dependency.

An aggregate sentence was imposed with a head sentence expiring 6 August 2025 and a non-parole period expiring 6 February 2024, dating from 7 August 2020. The offender satisfied all nine criteria for referral as an "eligible convicted offender" under the Drug Court Act 1998, and His Honour referred him to the Drug Court to assess suitability for the Compulsory Drug Treatment Program.

Orders Made

  • An aggregate sentence was imposed, with the head sentence expiring 6 August 2025 and a non-parole period of three years and six months expiring 6 February 2024, both dating from 7 August 2020
  • For each of the two drive unlicensed offences: conviction recorded pursuant to section 10A of the Crimes (Sentencing Procedure) Act 1999, with no other penalty
  • For the drive in a manner dangerous offence: a fixed term of four months, wholly concurrent with the aggregate sentence, commencing 7 August 2020
  • The offender was referred to the Drug Court pursuant to section 18B of the Drug Court Act 1998 to determine suitability for the Compulsory Drug Treatment Program at Parklea Correctional Centre
  • A copy of the psychologist's report was ordered to be provided to the Department of Corrective Services

Key Takeaways

  • The guideline judgment in R v Henry and Ors on armed robbery may offer some assistance in sentencing for unarmed or non-aggravated robberies, but courts must apply it in a qualified way that reflects the different nature of the offending, and the prescribed sentencing range in Henry does not automatically apply.
  • Where an offender's drug dependency is causally linked to their offending, the principle in Bugmy v The Queen supports treating that dependency as a mitigating factor, even in the context of serious and repeated offending.
  • A referral to the Drug Court under the Drug Court Act 1998 requires a sentencing court to be satisfied of nine specific criteria, including that the offender has a long-term drug dependency, that the offending was related to it, and that the unexpired non-parole period is at least 18 months.
  • Section 10A of the Crimes (Sentencing Procedure) Act 1999 permits a court to record a conviction for a minor offence dealt with on a section 166 certificate without imposing any further penalty, where the circumstances warrant.
  • Aggregate sentencing was applied across the three principal offences, with the additional certificate matters dealt with by concurrent terms or convictions without penalty, reflecting the totality principle.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), including sections 10A and 167
- Drug Court Act 1998 (NSW), including sections 5A(1) and 18B
- Criminal Procedure Act 1986 (NSW), section 167

Cases
- R v Henry and Ors (1999) 46 NSWLR 346 (guideline judgment on armed robbery sentencing)
- R v Black [2001] NSWCCA 41 (application of Henry guideline to other robbery offences)
- Bugmy v The Queen [2013] 249 CLR 571 (disadvantage, drug dependency, and mitigation in sentencing)