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District Court 3 September 2021

R v Souksavath

[2021] NSWDC 458

Assault & violenceTheft & property
CRIME ROBBERY IN COMPANY SENTENCING RELEVANT FACTORS ON SENTENCE BACKGROUND OF DISADVANTAGE SIGNIFICANT MENTAL HEALTH ISSUES DIMINISHMENT OF MORAL CULPABILITY

Citation: R v Souksavath [2021] NSWDC 458
Court: District Court of New South Wales
Date: 3 September 2021
Judge: Weinstein SC DCJ

Background

The offender, born in 1997, was sentenced for robbery in company contrary to section 97 of the Crimes Act 1900, carrying a maximum penalty of 20 years imprisonment. The offence occurred on 2 December 2019 at Cabra Vale Park in Cabramatta, where the offender and three younger co-offenders confronted a victim who was walking through the park. The group stopped the victim, demanded his bag, punched him, struck him repeatedly to the back of the head while he was on the ground, and took his satchel containing cash, cards, and other personal items.

The offender was an adult at the time of the offence; his three co-offenders were juveniles who were sentenced separately in the Children's Court. The offender had a prior conviction for robbery in company from 2015, when he was a child, for which he received probation, along with minor adult offences. He pleaded guilty to the current charge.

At sentencing, the court received psychiatric and psychological evidence, a Sentencing Assessment Report, and letters from the offender's treating psychiatrist and general practitioner. Significant mental health issues, a background of disadvantage, and the sentences received by the co-offenders all formed part of the sentencing analysis.

  • What was the appropriate objective seriousness of the offending, and how did the offender's role compare with that of his co-offenders?
  • To what extent did the offender's mental health and background of disadvantage diminish his moral culpability?
  • Whether the full-time custody threshold was crossed, or whether the sentence could appropriately be served by way of an Intensive Correction Order (ICO).
  • How to achieve parity with the co-offenders who were sentenced in the Children's Court, noting that different legislative frameworks applied.

Decision

The court found the offending fell toward the low to mid-range of objective seriousness. The offender's role was assessed as less serious than that of the co-offender who initiated the confrontation, though the offender was nonetheless a participant in the group assault. The court noted the offence involved physical violence, some degree of planning, and was committed in company, all of which were aggravating features.

Weinstein SC DCJ gave significant weight to the offender's mental health history. The offender had reportedly been diagnosed with drug-induced psychosis and schizophrenia as a juvenile and was under psychiatric and general practitioner care at the time of sentencing. Consistent with the principles in Bugmy v The Queen, the court found that the offender's background of disadvantage and ongoing mental health difficulties materially diminished his moral culpability, even though they did not excuse the offending.

The court also considered the sentences imposed on the three juvenile co-offenders in the Children's Court, all of whom received non-custodial orders including probation. While acknowledging that the Children's Court operated under a different legislative framework prioritising rehabilitation, the court accepted that parity remained a relevant consideration and that a broadly proportionate outcome was required.

The court concluded that the full-time custody threshold had not been crossed, and that the offender's risk of reoffending would not be better addressed by full-time detention. A sentence of two years imprisonment was imposed, to be served by way of an ICO, with the pre-sentence custody of 4 months and 29 days taken into account in reducing the effective duration of the order.

Orders Made

  • The offender was convicted of robbery in company contrary to section 97 of the Crimes Act 1900.
  • A term of imprisonment of 2 years was imposed, reduced by 4 months and 29 days of pre-sentence custody.
  • The sentence was ordered to be served by way of an Intensive Correction Order (ICO) pursuant to section 7(1) of the Crimes (Sentencing Procedure) Act 1999, commencing 3 September 2021 and expiring 4 April 2023.
  • Standard ICO conditions applied: no further offences; submission to supervision by a Community Corrections Officer.
  • Additional conditions included:
  • A non-association condition prohibiting contact with any co-offender for the duration of the ICO.
  • A rehabilitation and treatment condition requiring attendance upon the treating psychiatrist and Fairfield Community Mental Health, and monthly reviews with the general practitioner for psychotropic medication management.
  • An abstention condition prohibiting the use of any drugs other than those prescribed by a medical practitioner.
  • A requirement to telephone Fairfield Community Corrections within 7 days.
  • The offender was warned that non-compliance could result in formal warnings, more stringent conditions, or revocation of the ICO, which may lead to full-time custody.

Key Takeaways

  • The District Court confirmed that a background of disadvantage and significant mental health difficulties can materially diminish an offender's moral culpability in sentencing, consistent with the High Court's guidance in Bugmy v The Queen, even where the offending was serious.
  • Where co-offenders have been sentenced under a different legislative framework (here, the Children's Court regime), parity remains a relevant consideration but must be approached with care given the different statutory purposes at play.
  • An ICO was available and appropriate even for an offence of robbery in company where the full-time custody threshold was not crossed, particularly where community-based supervision and treatment conditions could adequately address rehabilitation and community safety.
  • The court adjusted the ICO duration to account for pre-sentence custody, applying the principle confirmed in Mandranis v R that such time must be reflected in the length of the order.
  • Rehabilitation and treatment conditions attached to the ICO, including mandatory psychiatric attendance and drug abstention, formed a central part of the court's response to the offender's mental health and substance use issues.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97 (robbery in company)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 7(1) (intensive correction orders)
- Children's (Criminal Proceedings) Act 1987 (NSW), s 33(1)(e)

Cases:
- Bugmy v The Queen (2013) 249 CLR 571
- Muldrock v The Queen (2011) 244 CLR 120
- Green v R; Quinn v R (2011) 244 CLR 462
- Markarian v The Queen [2005] HCA 25
- Mandranis v R [2021] NSWCCA 97
- R v Henry (1999) 46 NSWLR 346
- DPP v De La Rosa [2010] NSWCCA 194
- Casella v R [2019] NSWCCA 201
- Karout v R [2019] NSWCCA 253
- R v Fangaloka [2019] NSWCCA 173
- Fisher v R [2021] NSWCCA 91
- Kelley v R [2021] NSWCCA 173
- Moodie v R [2020] NSWCCA 160
- Rossal v R [2021] NSWCCA 200
- Wany v DPP [2020] NSWCCA 318
- R v Pullen [2018] NSWCCA 264
- R v Wong [2003] NSWCCA 247
- R v Millwood [2012] NSWCCA 2
- R v Govinden (1999) 106 A Crim R 314