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District Court 27 January 2021

R v Campbell

[2021] NSWDC 43

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW SENTENCE ARMED ROBBERY IN COMPANY ADMISSIONS FORMS 1

Citation: R v Campbell [2021] NSWDC 43
Court: District Court of New South Wales
Date: 27 January 2021
Judge: Judge W Hunt

Background

The offender, a 26-year-old man, appeared for sentence on six substantive offences across two indictments, with additional offences taken into account on Forms 1. The offending spanned a period of approximately three months, from October 2019 to January 2020, across Narooma and Armidale.

The offending began within two days of the offender's release on parole on 23 October 2019. It included armed robberies at a service station and two hotels, an assault with intent to rob, aggravated break and enter, and carrying a conveyance without the owner's consent. In several incidents, the offender was armed with knives or other weapons and acted with co-offenders. Victims included hotel staff and service station employees who were confronted, held at knifepoint, and, in one instance, physically chased through a premises.

The offender pleaded guilty in the Local Court and maintained those pleas. He also acknowledged guilt in relation to the Form 1 matters and consented to the court taking them into account.

  • The appropriate objective seriousness to assign to each offence, including the relevance of aggravating factors such as breach of conditional liberty, the use of weapons, and the vulnerability of victims
  • The correct utilitarian discount for early guilty pleas, including an additional discount under s 23 of the Crimes (Sentencing Procedure) Act
  • Whether special circumstances existed justifying a departure from the standard non-parole period ratio
  • How to apply totality principles when constructing an aggregate sentence across multiple serious offences
  • Whether backdating the sentence would create double-counting given that breach of parole had already been treated as an aggravating factor

Decision

Judge Hunt identified significant aggravating features across all offences. The offending commenced within 48 hours of release on parole. Multiple victims were confronted with weapons at close range in circumstances the court described as frightening. The offending was persistent and escalating across a short period.

The court applied utilitarian discounts ranging from 35% to 40% across the various counts, reflecting the timing and consistency of the guilty pleas. An additional discount was applied under s 23 of the Crimes (Sentencing Procedure) Act where warranted. The resulting indicative sentences ranged from 24 to 31 months for individual counts, with non-parole periods specified for those counts attracting a standard non-parole period.

The court found special circumstances, principally the offender's need for an extended period of supervised rehabilitation in the community and to avoid further institutionalisation. This justified adjusting the non-parole period ratio in the aggregate sentence.

On the question of backdating, the court applied principles from Callahan v The Queen to avoid double-counting. Because breach of conditional liberty had already been taken into account as an aggravating factor when assessing objective seriousness, the court backdated the sentence to near the date of arrest and structured a high degree of concurrence between the parole breach and the new sentence.

Orders Made

  • Aggregate sentence of five years and six months, commencing 1 February 2020 and expiring 31 July 2025
  • Non-parole period of four years, with an earliest release date of 31 January 2024
  • Special circumstances found, resulting in a non-parole period proportionally shorter than the statutory default

Key Takeaways

  • The District Court treated the breach of conditional liberty (parole) as a significant aggravating factor in assessing the objective seriousness of all offending, consistent with established sentencing principles.
  • To avoid double-counting, the court applied Callahan v The Queen [2006] NSWCCA 58 by backdating the sentence and structuring substantial concurrence between the revocation of parole and the new term, rather than treating the parole period as entirely separate.
  • Special circumstances were found where an offender's background and risk of institutionalisation pointed to a need for extended supervised rehabilitation, permitting adjustment of the standard non-parole period ratio.
  • Under Bugmy v The Queen (2013) 249 CLR 571, a dysfunctional upbringing remained a relevant mitigating consideration even where the offending was serious, though it did not displace the objective gravity of the offences.
  • Early guilty pleas entered in the Local Court, maintained throughout proceedings, attracted utilitarian discounts of 35% to 40% together with additional discounts under s 23 of the Crimes (Sentencing Procedure) Act.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 97(1), 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 23

Cases
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- Callahan v The Queen [2006] NSWCCA 58
- Muldrock v The Queen [2011] 244 CLR 120
- R v Ellis (1986) 6 NSWLR 603
- R v Henry (1999) 46 NSWLR 346
- R v Jinnette [2012] NSWCCA 217
- R v Millwood [2012] NSWCCA 2
- Veen v R (No 2) (1988) 164 CLR 465