Citation: R v Lin [2021] NSWDC 70
Court: District Court of New South Wales
Date: 4 February 2021
Judge: Buscombe DCJ
Background
The offender was an 18-year-old male who, together with a co-offender, approached a lone woman walking to Redfern Railway Station on the morning of 4 January 2020. The offender grabbed the victim by her hoodie and repeatedly demanded money. The co-offender held what appeared to be a car key close to her face and threatened to "shank" her. The victim resisted, stated she had no money, and was eventually released. Nothing was taken. Shortly afterwards, police were alerted when a flick knife fell from the offender's pocket at a hotel in Haymarket. He was found in possession of the knife and a sum of cash.
The offender pleaded guilty in the Local Court and maintained those pleas in the District Court. He faced two principal charges: attempted armed robbery under s 97(1) of the Crimes Act 1900 (NSW), which carries a maximum of 20 years imprisonment, and possession of a prohibited weapon (a flick knife with a nine-centimetre blade) without a permit under s 7(1) of the Weapons Prohibition Act 1998 (NSW), which carries a maximum of 14 years imprisonment and a standard non-parole period of five years. A goods in custody matter was listed on a Form 1 to be taken into account on the prohibited weapon offence.
Legal Issues
- How serious were the two principal offences on an objective assessment?
- What weight should be given to the offender's youth, absence of prior criminal history, and personal circumstances in mitigation?
- Was an Intensive Correction Order (ICO) an appropriate sentencing disposition, rather than full-time custody?
Decision
Objective seriousness. Buscombe DCJ assessed the attempted robbery as below the notional mid-range but not at the lowest end. The weapon used was a car key rather than a knife, reducing the risk of serious physical injury. The offence was opportunistic and relatively brief, and the physical contact with the victim was limited. The fact that it was committed in company was treated as an aggravating factor. The flick knife offence was placed towards the bottom of the range, given that the offender claimed a defensive purpose (which the court did not accept as mitigation) and the knife was found in a licensed venue rather than used in any offence.
Subjective case. The offender was 18 at the time of the offences and 19 at sentencing, placing him squarely in the category of a "young adult offender." Consistent with the principles in Bullock v The Queen and BP v The Queen, the court gave greater weight to rehabilitation and reduced weight to general deterrence, denunciation, and retribution. He had no prior criminal history, which entitled him to some leniency. Psychological and sentencing assessment material, together with the offender's own evidence, disclosed a troubled background, a history of drug use, and participation in a residential drug rehabilitation program at the time of sentencing.
Disposition. The court imposed an aggregate sentence of two years and four months. Taking into account the offender's youth, his lack of prior offending, the time already served in pre-sentence custody (approximately two months and 25 days), and his engagement with rehabilitation, the court determined that an Intensive Correction Order (a sentence of imprisonment served in the community under strict supervision) was more likely to address the risk of re-offending than full-time gaol. The conditions included a prohibition on taking prohibited drugs and 300 hours of community service. Buscombe DCJ made clear that any breach of the order would not result in a return to court but would be referred directly to the State Parole Authority, with a strong prospect of full-time custody following.
Orders Made
- The offender was convicted of the offences to which he pleaded guilty.
- An aggregate sentence of 2 years and 4 months was imposed, to be served by way of Intensive Correction Order.
- The sentence expires on 3 June 2023.
- Standard ICO conditions applied: no further criminal offences; submission to supervision by a community corrections officer.
- Additional conditions: no prohibited drugs; 300 hours of community service.
Key Takeaways
- The District Court confirmed that sentencing a young adult offender calls for greater emphasis on rehabilitation over general deterrence, denunciation, and retribution, consistent with the Court of Criminal Appeal's approach in Bullock v The Queen and BP v The Queen.
- Where an attempted robbery involves a relatively minor weapon, is opportunistic and brief, and results in no property being taken, an objective assessment may place the offence below the notional mid-range under the Henry guideline.
- An offender's assertion that a prohibited weapon was carried for personal protection does not constitute a mitigating factor in sentencing for possession of that weapon.
- Participation in a residential drug rehabilitation program at the time of sentencing, combined with a clean criminal record and youth, supported the court's conclusion that an ICO was more likely to reduce reoffending risk than immediate full-time imprisonment.
- The Form 1 goods in custody matter had minimal impact on the sentence for the prohibited weapon offence, reflecting the principle that related matters taken into account on a Form 1 do not always materially alter the principal sentence.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW) s 97(1) (armed robbery)
- Weapons Prohibition Act 1998 (NSW) s 7(1) (possession of prohibited weapon)
- Crimes (Sentencing Procedure) Act 1996 (NSW) s 3A (purposes of sentencing)
Cases
- R v Henry (1999) 46 NSWLR 346 (guideline judgment on armed robbery)
- Bullock v The Queen [2016] NSWCCA 131 (young adult offender sentencing principles)
- BP v The Queen [2010] NSWCCA 159 (young adult offender sentencing principles)