Citation: R v Lovett [2020] NSWDC 909
Court: District Court of New South Wales
Date: 22 November 2020
Judge(s): Norrish QC DCJ
Background
The offender was a 33-year-old man who entered a restaurant in Petersham in the early afternoon of 22 February 2020. Armed with a 30-centimetre kitchen knife, he threatened two staff members and demanded money, successfully taking approximately $175 in cash from one victim while a second fled the premises. The offender was wearing distinctive clothing and was captured clearly on CCTV, which also showed him returning to his nearby residence shortly after the robbery.
Police identified and attended the offender's home within half an hour of the offence. A search warrant was obtained later that evening, and the knife and distinctive clothing were recovered from his bedroom. The offender had been in custody continuously from the date of his arrest.
The offender pleaded guilty and was committed to the District Court for sentence. A companion attempted robbery of the second victim was listed on a Form 1 (a document allowing the court to take into account related offences when imposing sentence for the principal offence, without recording a separate conviction).
Legal Issues
- What was the appropriate starting point and final sentence for armed robbery under s 97 of the Crimes Act 1900, taking into account objective seriousness and the Form 1 matter?
- What discount applied for the utilitarian value of the guilty plea?
- Whether the offender's disadvantaged upbringing, mental health history, and personal circumstances warranted mitigation of sentence?
- Whether special circumstances existed to justify varying the standard non-parole period ratio?
Decision
Norrish QC DCJ assessed the offence as falling at the lower end of the objective seriousness scale. The weapon was a domestic kitchen knife rather than a purpose-built weapon, the amount stolen was modest, and the offending was unsophisticated. Nonetheless, the use of a knife to threaten victims at close range, and the significant distress caused to both victims, meant a full-time custodial sentence was required.
The judge identified a starting point of four years imprisonment, then applied a 25% discount for the guilty plea in accordance with the Crimes (Sentencing Procedure) Act 1999, reducing the sentence to three years. The court drew on the guideline judgment in Henry and Ors v R as a reference point, noting that the guideline operates as a guidepost rather than a ceiling.
The offender's background weighed significantly in the sentencing exercise. His upbringing was described as dysfunctional and disadvantaged, and he had a longstanding mental health history supported by a psychiatric report and evidence from a community support worker. His father had died just two days before the offending, and his mental health had deteriorated in the period immediately preceding the robbery. The court acknowledged the principles in Bugmy v R and Munda v Western Australia, which recognise that a deprived background may moderate the weight given to general deterrence. The court also noted genuine remorse and realistic plans for rehabilitation on release.
Special circumstances were found to exist, warranting a departure from the standard non-parole period ratio. The court fixed the non-parole period at 50% of the total sentence (18 months), rather than the standard two-thirds ratio, to allow a longer period on parole. This was intended to give the offender adequate supervised support in the community, time to address the underlying causes of his offending, and a meaningful opportunity for rehabilitation. The court also noted the impact of COVID-19 on conditions in custody as a further relevant factor.
Orders Made
- The offender was convicted of robbery whilst armed with an offensive weapon (s 97, Crimes Act 1900).
- Sentenced to three years imprisonment, with a non-parole period of one year and six months.
- Both the total sentence and the non-parole period dated from 22 February 2020 (the date of arrest and entry into custody).
- Eligible for release to parole on 21 August 2021.
- Balance of sentence (one year and six months) to expire on 21 February 2023.
- The attempted robbery of the second victim was taken into account on the Form 1.
Key Takeaways
- A guilty plea entered at committal stage attracted a 25% discount off the head sentence, applied in accordance with the Crimes (Sentencing Procedure) Act 1999.
- Under the principles in Bugmy v R and Munda v Western Australia, a severely disadvantaged upbringing remains relevant at sentencing even where an offender has an established criminal history, particularly in moderating the weight given to general deterrence.
- Special circumstances, including the need for extended post-release supervision, mental health support, and rehabilitation, justified fixing a non-parole period at 50% of the total term rather than the standard two-thirds ratio.
- The District Court confirmed that the guideline in Henry and Ors v R for armed robbery operates as a guidepost and not a ceiling; the maximum penalty under the relevant section remains the upper limit.
- Conditions of custody during the COVID-19 pandemic were recognised as a factor capable of being taken into account in the sentencing exercise.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 97 (robbery whilst armed with offensive weapon)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases
- Attorney General's Application (No 1) (2002) 56 NSWLR 146
- Bugmy v R [2013] HCA 37
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- Henry and Ors v R (1999) 46 NSWLR 346
- Munda v Western Australia [2013] HCA 38
- R v Engert (1995) 84 A Crim R 67
- R v Ponfield (1999) 48 NSWLR 327
- Thomson & Houlton v R [2000] NSWCCA 309
- Veen (No 2) v R [1988] HCA 14; 164 CLR 465
- Yardley v Betts (1979) 1 A Crim R