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District Court 27 November 2020

R v Campbell

[2020] NSWDC 908

Assault & violenceTheft & propertyFirearms & weapons
CRIME SENTENCE PEOPLE THERE ROBBERY WITH OFFENSIVE WEAPON LITTLE PLANNING NOT ARMED ON ARRIVAL

Citation: R v Campbell [2020] NSWDC 908
Court: District Court of New South Wales
Date: 27 November 2020
Judge(s): Norrish QC DCJ

Background

The offender, a young man aged 18 at the time of his first offences, appeared for sentencing on multiple charges arising from two separate incidents. The first set of offences occurred on 19 December 2018 at Coledale, where the offender entered a family home in the early hours of the morning, picked up a kitchen knife from within the premises, and confronted the adult occupants, demanding property including mobile phones, cash, and a watch. At the time, the offender was on parole under a control order made pursuant to the Children's Criminal Proceedings Act, with that non-parole period having expired only days earlier.

The second set of offences was committed on 27 November 2019 at the Bondi Icebergs Club, while the offender was on Supreme Court bail in relation to the Coledale charges. He entered the club in company with an unknown person and robbed an individual of a mobile phone, driver's licence, and wallet. The offender had pleaded guilty to all charges at the Local Court, attracting a 25% discount for the utilitarian value of those early pleas.

The offender had an extensive criminal history as a juvenile but had not previously served an adult custodial sentence. His background included a deeply dysfunctional and disadvantaged upbringing, significant drug dependency, and little experience of stable community living. The sentencing judge heard evidence from the offender and considered victim impact statements from those affected by the Coledale offences.

  • What sentences were appropriate for each offence, accounting for objective seriousness, aggravating factors, and the offender's personal circumstances?
  • How should the court treat the fact that the Coledale offences were committed while on parole and the Bondi offences while on bail, both being forms of conditional liberty?
  • To what extent should the offender's youth, disadvantaged background, and rehabilitation prospects reduce the sentences that would otherwise be imposed?
  • How should the principle of totality govern the structure of the aggregate sentence across four charges?
  • What credit was required for pre-sentence custody, and from what date should the sentences be taken to commence?

Decision

Norrish QC DCJ treated the offending as serious across both incidents. The Coledale home invasion involved a knife (although not brought by the offender), a demand for property, and threats of consequences for non-compliance, all occurring inside a family home in the early hours of the morning with multiple occupants present. His Honour noted, however, several mitigating features: the house was randomly chosen, the offender had no intention to injure anyone, no physical harm resulted, and the knife had been taken from the premises rather than brought to it. The Bondi offending, committed in company and while on bail, reflected a further escalation of risk.

Offending on conditional liberty was treated as an aggravating factor under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 in relation to both sets of charges. The Coledale offences were committed while on parole under a children's control order, and the Bondi offences were committed on Supreme Court bail. His Honour also considered that the offender had failed to appear at Wollongong District Court while on bail, though some explanation was offered, including that his bail address had been lost when his sister's rental was terminated.

In assessing the offender's personal circumstances, the court applied the principles in Bugmy v R [2013] HCA 37, acknowledging that a profoundly disadvantaged upbringing does not diminish in relevance merely because an offender has accumulated prior offending. The offender's youth, genuine remorse, institutionalisation, and good prospects of rehabilitation were all treated as significant mitigating factors. His Honour specifically noted this was the offender's first adult custodial sentence and that he would require substantial support on release, including drug counselling and assistance with pro-social living and employment.

Applying the totality principle, the court structured the sentences so that not all terms ran consecutively. The aggregate sentence was designed to reflect the overall criminality while avoiding crushing the offender's rehabilitative prospects. His Honour also referred the offender to the Drug Court for consideration for admission into the Compulsory Drug Treatment Program.

Orders Made

  • Sentence commenced 20 July 2019 (reflecting pre-sentence custody of one year, four months and six days)
  • Entering dwelling house with intent (Coledale): 3 years imprisonment
  • Armed robbery with offensive weapon (Coledale): 4 years 6 months imprisonment
  • Entering premises with intent in company (Bondi): 3 years 6 months imprisonment
  • Robbery simpliciter (Bondi): 4 years imprisonment
  • Total aggregate sentence: 7 years 3 months imprisonment
  • Non-parole period: 4 years 3 months, commencing 20 July 2019, expiring 21 October 2023
  • Eligible for release to parole: 21 October 2023
  • Referred to the Drug Court under Part 2A of the Drug Court Act 1998 for consideration for the Compulsory Drug Treatment Program
  • Form 1 matter (enter motor vehicle without consent) taken into account

Key Takeaways

  • Committing offences while on parole or bail are statutory aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999, and the District Court applied this to both sets of offences given the different forms of conditional liberty in play at each time.
  • Under the principles in Bugmy v R, the relevance of a severely disadvantaged and dysfunctional upbringing does not diminish with the accumulation of prior offending, even where that history is extensive, and the court gave meaningful weight to this in reducing the sentences imposed.
  • Youth and the absence of any prior adult imprisonment are significant factors that can shape the structure of a sentence, including by creating a shorter non-parole period to provide an earlier opportunity for supervised reintegration.
  • The totality principle requires courts to assess whether the aggregate of cumulative sentences is proportionate to the overall criminality, and in this case the sentencing judge structured partial concurrence to avoid an outcome that would extinguish the offender's rehabilitation prospects.
  • A 25% discount applied to each offence following guilty pleas entered at the Local Court, reflecting the utilitarian value of those pleas in accordance with the relevant sentencing legislation.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 94, 111(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)
- Children's Criminal Proceedings Act (NSW)
- Drug Court Act 1998 (NSW), Part 2A

Cases
- Bugmy v R [2013] HCA 37
- Harris v R [2005] NSWCCA 204
- Holder & Ors v R [1983] 3 NSWLR 245
- Huynh v R [2005] NSWCCA 220
- Kentwell v R [2013] NSWCCA 266
- Mill v R (1988) 166 CLR 59
- Pearce v R (1998) 194 CLR 610
- R v Henry (1999) 46 NSWLR 346
- Tilyard v R [2007] NSWCCA 7
- Veen (No 2) v R (1988) 164 CLR 465
- Yardley v Betts (1979) 1 A Crim R 329