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District Court 19 November 2021

R v EDEN

[2021] NSWDC 623

Assault & violenceTheft & propertyFirearms & weapons
CRIME ARMED ROBBERY WITH WOUNDING PLEA OF GUILTY INTENTIONAL WOUNDING SENTENCING GUIDELINE JUDGMENT OF HENRY LIMITED CRIMINAL HISTORY

Citation: R v EDEN [2021] NSWDC 623
Court: District Court of New South Wales
Date: 19 November 2021
Judge(s): Lerve DCJ

Background

The offender was almost 21 years of age when, on 30 March 2018 in Ashmont (a suburb of Wagga Wagga), he participated in a scheme to rob a 19-year-old victim. A co-offender, with whom the offender was in a relationship, used Facebook Messenger to lure the victim to a suburban address under the pretence of a sexual encounter, asking him to bring $50 cash.

On arrival, the victim picked up the offender, believing him to be the co-offender's brother. Once the pair drove to a nearby shopping mall, the offender produced a large knife with an approximately 25 cm blade and held it to the victim's throat. The offender then deliberately sliced the victim's upper left shoulder, causing a 7 cm laceration that required suturing under local anaesthetic.

The offender demanded and took approximately $55 in cash and coins. He threatened the victim's life and directed him to block the co-offender on Facebook before leaving the car. The offender pleaded guilty to armed robbery with wounding under section 98 of the Crimes Act 1900 and was committed to the District Court for sentence.

  • What was the appropriate starting point for sentencing, having regard to the R v Henry & Ors guideline judgment on robbery offences?
  • How should the standard non-parole period of 7 years and maximum penalty of 25 years be weighed?
  • What weight should be given to the offender's subjective circumstances, including limited criminal history, Bugmy factors (referring to the High Court's guidance on how background disadvantage bears on moral culpability), remorse, and prospects of rehabilitation?
  • Was a finding of special circumstances (which allows the court to reduce the non-parole period below the statutory default proportion) warranted?
  • Was an Intensive Correction Order an available or appropriate sentencing option?

Decision

Lerve DCJ applied the R v Henry guideline, which identifies a general sentencing range of four to five years for the full term of a robbery offence with common features: a young offender with little criminal history, use of a weapon such as a knife, limited planning, limited actual violence, a victim in a vulnerable position, and a small amount taken. His Honour acknowledged that this was a charge of armed robbery with wounding rather than the standard robbery offence addressed in Henry, but still found the guideline instructive as a reference point.

Assessing the objective gravity, his Honour noted the use of a substantial knife, the deliberate infliction of a wound (an element of the offence itself), a degree of planning (through the Facebook lure), and the victim's limited ability to escape from inside the vehicle. The wound required suturing but was not, on the facts, described as particularly serious. Balancing these factors, his Honour set a starting point of 5 years imprisonment.

The offender's subjective case was described as "particularly powerful." His Honour accepted evidence of genuine remorse, limited prior criminal history, and strong rehabilitation prospects, including steps the offender had already taken. Bugmy factors, which require a sentencing court to take into account background disadvantage when assessing moral culpability, were also considered. After applying a 25 percent discount for the utilitarian value of the early guilty plea, the total sentence was reduced to 3 years and 9 months.

His Honour firmly rejected an Intensive Correction Order as an available alternative, concluding the seriousness of the offending required a sentence that exceeded by some margin the two-year threshold for that option. A generous finding of special circumstances was made, reflecting the offender's age, the fact this was his first time in custody, and the need for an extended supervisory period on release to support rehabilitation and reintegration. The non-parole period was set at approximately 53 percent of the total sentence, below the usual statutory default.

Orders Made

  • The offender was convicted of armed robbery with wounding contrary to section 98 of the Crimes Act 1900.
  • Non-parole period of 2 years, commencing 18 November 2021 and expiring 17 November 2023.
  • Balance of term of 1 year and 9 months, commencing 18 November 2023 and expiring 17 August 2025.
  • Total sentence: 3 years and 9 months.
  • Special circumstances found; non-parole period approximately 53 percent of total sentence.
  • The court recommended the offender be released upon expiration of the non-parole period.

Key Takeaways

  • The District Court confirmed that the R v Henry guideline judgment, while directed at standard robbery, remains instructive even in armed robbery with wounding cases when identifying a sentencing range and relevant features of the offence.
  • A deliberate wounding, even where it constitutes an element of the charged offence rather than aggravating conduct beyond the charge, still bears on the objective seriousness of the offending.
  • Bugmy factors and a "particularly powerful" subjective case, including remorse, limited criminal history, and demonstrated steps toward rehabilitation, can bring a sentence toward the lower end of the statistical range for section 98 offences.
  • An Intensive Correction Order is not available where the seriousness of the offending requires a sentence that meaningfully exceeds the two-year eligibility threshold, even where strong subjective circumstances exist.
  • A first-time custodial offender's age, rehabilitative progress, and need for structured post-release supervision can each support a generous finding of special circumstances, reducing the proportion of the sentence served in custody.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 98 (armed robbery with wounding)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Children (Criminal Proceedings) Act 1987 (NSW)

Cases
- R v Henry & Ors (1999) 46 NSWLR 346 (guideline judgment on robbery sentencing)
- Bugmy v The Queen [2013] HCA 37 (background disadvantage and moral culpability)
- Clark-Jeffries v R [2019] NSWCCA 56
- Dungay v R [2020] NSWCCA 209
- Locke v R (2010) 207 A Crim R 34
- R v Carroll [2008] NSWCCA 218
- R v Dodd 57 A Crim R 349
- R v Tuala [2015] NSWCCA 8