AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 3 December 2021

R v Dargin

[2021] NSWDC 653

Theft & propertyTraffic & drivingFirearms & weapons
CRIME SENTENCE ROBBERY ARMED WITH A DANGEROUS WEAPON COVID 19

Citation: R v Dargin [2021] NSWDC 653
Court: District Court of New South Wales
Date: 3 December 2021
Judge: Colefax SC DCJ

Background

The offender, a 23-year-old Aboriginal man, appeared for sentencing on three offences arising from events in August and September 2020. The principal offence was an armed robbery of a newsagency in Bradbury, during which the offender pointed an air pistol at the shopkeeper's chest and demanded cigarettes and cash. He had arrived at the newsagency on a stolen motorbike and was wearing a helmet and mask.

The offender was also charged with acquiring a pistol while subject to a Firearm Prohibition Order, and with driving while disqualified (a second or subsequent offence). Two further matters were placed on a Form 1 to be taken into account on sentence: riding a conveyance without the owner's consent, and possessing goods suspected of being stolen.

The offender had surrendered himself to police on 1 September 2020 and had been in continuous custody since that date. He entered guilty pleas to all three charges, attracting a 25 per cent discount on each indicative sentence.

  • What is the appropriate objective seriousness of each offence within its range?
  • How should the offender's deprived Aboriginal background, traumatic childhood, and mental health reduce moral culpability, in accordance with Bugmy v The Queen?
  • What discount applies for the guilty plea, and are there special circumstances justifying a variation to the standard non-parole period ratio?
  • How should the seriously adverse conditions of custody during the COVID-19 pandemic affect the sentence?

Decision

His Honour assessed both the armed robbery (sequence 1) and the driving while disqualified offence (sequence 3) as mid-range for their respective categories, while the firearms prohibition offence (sequence 6) fell just below the mid-range. The fact that all three offences were committed while the offender was on parole was treated as an aggravating feature separate from objective seriousness.

Applying Bugmy v The Queen, the Court significantly reduced moral culpability on account of the offender's profoundly dysfunctional childhood: removal from his mother's care at age 12, entry into an unstable foster care system, early exposure to family violence and substance abuse, and repeated sexual assaults suffered while in juvenile detention. His Honour accepted that these circumstances diminished the offender's moral responsibility in the manner required by the High Court.

A finding of special circumstances was made to vary the ratio between the head sentence and non-parole period. The Court identified four reasons: the offender's youth, the risk of institutionalisation, the additional burden that imprisonment places on a person with significant mental health issues, and the need to support rehabilitation. The non-parole period was set at half the aggregate head sentence, rather than the standard two-thirds.

His Honour also expressed very serious concern, described as astonishment, at evidence that the offender had not received a single COVID-19 vaccination by late November 2021, despite his requests, at a time when approximately 92.5 per cent of the general population had received two doses. The Court noted that pandemic conditions had already interfered with the offender's visiting rights, access to courses, and mental health treatment, and that these hardships were relevant to the overall sentencing exercise.

Orders Made

  • Aggregate term of imprisonment of 6 years 6 months imposed for sequences 1, 6, and 3.
  • Non-parole period of 3 years 3 months, commencing 1 September 2020 and expiring 30 November 2023.
  • Balance of term of 3 years 3 months, commencing 1 December 2023 and expiring 28 February 2027.
  • Driving disqualification of 12 months, to commence 23 February 2024.

Key Takeaways

  • A profoundly deprived Aboriginal background, including childhood removal, foster care instability, exposure to violence, and sexual assault in juvenile detention, can substantially reduce an offender's moral culpability at sentence, as directed by the High Court in Bugmy v The Queen (2013) 249 CLR 571.
  • Committing offences while on parole is a discrete aggravating factor and, as the District Court emphasised, is distinct from the assessment of objective seriousness: the two analyses must not be conflated.
  • Seriously adverse custodial conditions during the COVID-19 pandemic, including denial of vaccination despite requests, interference with visits, and restricted access to courses and mental health treatment, are capable of bearing on the sentencing exercise.
  • Special circumstances justifying a longer parole period may be established by a combination of factors including youth, risk of institutionalisation, mental health burden, and rehabilitation prospects, without any single factor being determinative.
  • Under the guideline judgment R v Henry (1999) 46 NSWLR 346, armed robbery carries no standard non-parole period, but the guideline remains a relevant benchmark when assessing the range for offences under s 97(2) of the Crimes Act 1900 (NSW).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(2) (robbery armed with a dangerous weapon)
- Firearms Act 1996 (NSW), s 74(1) (acquiring a pistol while subject to a Firearm Prohibition Order)
- Road Transport Act 2013 (NSW), s 54(1)(a) (driving while disqualified)

Cases
- R v Henry (1999) 46 NSWLR 346 (guideline judgment for armed robbery)
- Bugmy v The Queen (2013) 249 CLR 571 (moral culpability and deprived background)
- R v Zerafa [2021] NSWDC 547 (concerning custodial conditions during COVID-19)