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District Court 27 August 2021

R v Buss

[2021] NSWDC 675

Assault & violenceTheft & propertyPublic order & justice offences
CRIME ROBBERY ARMED WITH OFFENSIVE WEAPON ROBBERY ATTEMPT ROBBERY RELEVANT FACTORS ON SENTENCE MULTIPLE OFFENCES COMMITTED ON PAROLE

Citation: R v Buss [2021] NSWDC 675
Court: District Court of New South Wales
Date: 27 August 2021
Judge(s): Haesler SC DCJ

Background

The offender had a criminal history dating to age 14 and had previously been sentenced for armed robbery on three separate occasions, including once before the same judge. Each prior sentence had included a finding of special circumstances, and on each occasion his parole had been revoked. He was diagnosed with schizophrenia and an intellectual disability, and the Court noted he had become institutionalised, with gaol functioning as his default state of existence.

In June 2020, the offender committed a series of offences across the Wollongong area while on parole and subject to a community correction order. The offences included an armed robbery at a Towradgi petrol station, an attempted robbery at a Figtree petrol station, and a robbery at a sandwich store in Figtree where two 15-year-old female attendants were the victims. In each incident he claimed to have a gun, though none was confirmed. He made no attempt to conceal his identity and was quickly identified from CCTV footage and arrested.

The sentencing proceedings addressed three principal offences brought before the District Court, three additional matters transferred by certificate under s 166 of the Criminal Procedure Act 1987, and a breach of a community correction order. The offender pleaded guilty to all matters and gave evidence at the sentencing hearing.

  • What aggregate sentence was appropriate given the objective seriousness of multiple robbery and attempted robbery offences?
  • How should the offender's significant mental illness and intellectual disability interact with the need for community protection in the sentencing exercise?
  • Whether a finding of special circumstances (which would extend the parole period beyond the statutory ratio) was warranted, given the offender's repeated failure to comply with parole conditions in the past.
  • How much weight should be given to the offender's expressed remorse, guilty plea, and plans for post-release engagement with mental health services?
  • How to treat the breach of the community correction order and the unlicensed driving matters as part of the overall sentencing exercise.

Decision

Haesler SC DCJ accepted that the offender's schizophrenia, intellectual disability, and substance abuse were chronic and genuine mitigating factors reducing his moral culpability. The Court acknowledged, consistent with the High Court's approach in Bugmy v The Queen, that the effects of a deprived and chaotic background and ongoing mental illness do not diminish with repeated offending and must always be given appropriate weight. The guilty plea and expressions of remorse were also accepted as genuine, though the Court noted that the offender had made similar assurances on previous occasions without following through once released.

Notwithstanding those mitigating factors, the Court placed substantial emphasis on community protection. The offender had offended almost immediately after being released on parole, while simultaneously subject to a community correction order, and CCTV had proven no deterrent whatsoever. The Court applied the 1999 guideline judgment in R v Henry as required by s 42A of the Crimes (Sentencing Procedure) Act 1999, and had regard to the maximum penalties of 20 years for armed robbery and 14 years for robbery and attempted robbery, while emphasising that sentencing is an individualised discretionary exercise rather than a mechanical calculation.

On the question of special circumstances, the Court declined to make a finding in the offender's favour. All three previous sentencing judges, including Haesler SC DCJ himself, had made such findings, and on each occasion the extended parole period had not resulted in successful community reintegration. The Court imposed an aggregate sentence of five years with a non-parole period of three years and nine months, arriving at a parole period of one year and three months. The Court noted this was still a meaningful supervisory period and recommended that the offender receive the full benefit of available post-release support, including engagement with community mental health teams and NDIS providers.

Orders Made

  • Community correction order breach: Proved. Sentence of one month imprisonment commencing 7 June 2020.
  • Unlicensed driving (two matters): Dealt with under s 10A of the Crimes (Sentencing Procedure) Act 1999; no further penalty imposed.
  • Aggregate sentence (four matters, all reflecting guilty pleas):
  • Dishonestly obtain benefit by deception: 4 months (indicated sentence)
  • Robbery armed with offensive weapon (Towradgi): 3 years 4 months (indicated sentence)
  • Attempted robbery (Figtree): 2 years 3 months (indicated sentence)
  • Robbery (Figtree sandwich store): 2 years 7 months (indicated sentence)
  • Aggregate term: 5 years imprisonment, commencing 7 July 2020.
  • Non-parole period: 3 years and 9 months.
  • Parole eligibility date: 6 April 2024.
  • Parole period: 1 year and 3 months, expiring 6 July 2025.
  • Direction: Copy of the psychiatric report (Dr Furst) to be forwarded to Community Corrections with the warrant by the Registrar.

Key Takeaways

  • Where an offender's mental illness and intellectual disability are chronic and clinically established, the District Court confirmed those conditions must be given genuine mitigating weight at sentence, even where the offending is serious and repeated, consistent with Bugmy v The Queen.
  • A finding of special circumstances is not automatically available to a mentally ill offender. Where an offender has repeatedly failed to complete prior extended parole periods without reoffending, a court may decline to make such a finding despite the presence of ongoing treatment needs.
  • Under s 42A of the Crimes (Sentencing Procedure) Act 1999, a sentencing court is obliged to take into account an applicable guideline judgment. Here, the Court applied the R v Henry guideline for robbery offences.
  • Offending on parole and while subject to a community correction order simultaneously aggravates the objective seriousness of the conduct and requires specific acknowledgment in the sentencing exercise.
  • Institutionalisation, in the sense of a court finding that an offender has become incapable of functioning outside custody, does not of itself reduce the primacy of community protection as a sentencing consideration where the offending involves repeated, serious offences against members of the public.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 42A
- Criminal Procedure Act 1987 (NSW), s 166

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 19
- Donald (a pseudonym) v R [2021] NSWCCA 198
- Engert v R (1995) 84 A Crim R 67
- Hoskins v R [2021] NSWCCA 169
- Moodie v R [2020] NSWCCA 160
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
- Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14