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District Court 1 October 2021

R v Jackson; R v Cox

[2021] NSWDC 497

Assault & violenceTheft & property

Citation: R v Jackson; R v Cox [2021] NSWDC 497
Court: District Court of New South Wales
Date: 1 October 2021
Judge(s): M L Williams SC DCJ

Background

Two young Aboriginal men, Reegan Jackson (born 1996) and Jacob Cox (born 2001), appeared for sentence after pleading guilty to robbery in company arising from an incident at Merewether on 5 September 2020. A third co-offender, Ebsworth, was to be sentenced separately the following week.

The robbery involved the three offenders approaching a man eating lunch near his car. Ebsworth punched the victim repeatedly, knocking him to the ground and continuing the assault there, while one of the group took the victim's car keys, wallet containing $400 cash, and an iPhone. The group fled in a stolen car, and Ebsworth drove it at the victim before leaving the scene. The victim sustained significant bruising and jaw swelling. After the robbery, the offenders used the victim's credit card to purchase alcohol at a bottle shop.

Jackson faced one additional Form 1 matter (dishonestly obtaining property by deception) taken into account on the principal count. Cox faced a second principal count of receiving stolen property, three further Form 1 matters, and a related driving offence. Both offenders had extensive prior criminal records.

  • What sentence was appropriate for each offender on the robbery in company charge, having regard to objective seriousness and all relevant sentencing purposes under s 3A of the Crimes (Sentencing Procedure) Act 1999?
  • What weight should be given to each offender's background of severe disadvantage, including their Aboriginality, as mitigating factors under Bugmy v The Queen?
  • Whether special circumstances existed in each case to justify a departure from the standard ratio between the non-parole period and the balance of sentence.
  • How to achieve parity between co-offenders of different ages and with different charges, and how to apply the totality principle across multiple counts and Form 1 matters.
  • What role should general and specific deterrence play given each offender's youth, personal circumstances, and risk of institutionalisation?

Decision

The court accepted that full-time custody was required in both cases. It applied a 25% discount to each sentence to reflect the guilty pleas. The court characterised the offending as involving real violence: Ebsworth delivered the physical assault, but all three were present and acting in concert, and the victim suffered genuine physical injury. The use of a stolen car as a getaway vehicle, combined with the subsequent fraudulent use of the victim's credit cards, added to the overall gravity of the conduct.

Against that, the court accepted a compelling subjective case for both offenders. Each had grown up in severely deprived and disadvantaged circumstances, consistent with the approach mandated by the High Court in Bugmy v The Queen, which requires courts to take into account the effects of profound disadvantage on moral culpability. Jackson had a psychiatric diagnosis of PTSD and multiple substance use disorders, had been using large quantities of alcohol and methamphetamine in the weeks before the offence, and had engaged meaningfully with rehabilitation programmes. Cox, at age 19, had already spent approximately 49% of his life in juvenile or adult custody, a fact the court found directly relevant to both specific deterrence and the risk of institutionalisation.

The court accepted that general deterrence was of lesser significance given both offenders' backgrounds, and moderated the weight given to specific deterrence given their youth and the institutionalisation risk. The court also took into account the more onerous conditions of custody during the COVID-19 pandemic, including suspension of in-person visits and reduced access to educational programmes. Special circumstances were found in each case, reflecting the need for extended supervision on release to address the disadvantage underlying the offending.

On parity and totality, the court imposed slightly different sentences to reflect Cox's additional receiving count and Form 1 matters. The commencement dates for each sentence were fixed in the exercise of discretion to account for time already spent in custody on related matters.

Orders Made

Reegan Jackson:
- Convicted of robbery in company (sequence 1); Form 1 matter taken into account
- Sentence of two years' imprisonment commencing 12 May 2021
- Non-parole period of 12 months, expiring 11 May 2022
- Special circumstances found

Jacob Cox:
- Convicted of robbery in company (sequence 1) and receiving (sequence 7); Form 1 matters taken into account
- Indicative sentences: two years (sequence 1); eight months (sequence 7)
- Aggregate sentence of two years and three months commencing 5 January 2021
- Non-parole period of 13 months, expiring 4 February 2022
- Special circumstances found
- Driving while unlicensed (sequence 6): convicted pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999; no further penalty imposed

Key Takeaways

  • Under Bugmy v The Queen, a sentencing court must give genuine weight to the effects of severe childhood deprivation and disadvantage on an offender's moral culpability, and this principle applied here to reduce the weight given to both general and specific deterrence for each offender.

  • The District Court found special circumstances in both cases, reflecting the need for a longer period of supervised release to address entrenched disadvantage and substance dependency rather than simply to recognise good custodial behaviour.

  • Where a young offender has spent a substantial proportion of their life in custody (here, approximately 49% in Cox's case), the court treated institutionalisation risk as a concrete factor moderating the weight of specific deterrence, not merely a theoretical concern.

  • Parity between co-offenders does not require identical sentences: the court imposed different aggregate terms to reflect the different charges each offender faced, while maintaining proportionality in the overall outcomes.

  • The impact of COVID-19 on conditions in custody was treated as a discrete mitigating factor, acknowledging that the suspension of visits and educational programmes made the custodial experience more burdensome than it would ordinarily be.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 97(1) (robbery in company), 188 (receiving)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A (purposes of sentencing), 10A (conviction without further penalty), 166 (related offences)

Cases:
- Bugmy v The Queen [2013] HCA 37
- R v Henry (1999) 46 NSWLR 346
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146