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District Court 7 December 2021

R v Andrew SWAN

[2021] NSWDC 783

Assault & violenceDrugsTheft & propertyPublic order & justice offences
CRIME SENTENCE STALK OR INTIMIDATE ARMED ROBBERY COMMON ASSAULT BUGMY PRINCIPLES

Citation: R v Andrew Swan [2021] NSWDC 783
Court: District Court of New South Wales
Date: 7 December 2021
Judge: Sutherland SC DCJ

Background

The offender, Andrew Swan, was sentenced for three offences arising from a series of connected incidents in Moree over several days in late January and early February 2021. The events appear to have originated in a dispute between Swan and another man, Aaron Gordon, over an alleged theft of drugs. That dispute drew in several other people, including Gary Maybury (a driver who became caught up in the initial confrontation) and Belinda Nixon (Gordon's apparent partner or associate).

Over the days following the initial argument, Swan repeatedly sought out Gordon, attending multiple addresses while armed. During these visits, he intimidated Maybury at his home while carrying a piece of steel, assaulted Nixon by punching her in the mouth, and later robbed Maybury of a bum bag containing cash, a phone, identification cards, tobacco, and prohibited drugs, by throwing him to the ground while armed with a knife.

Swan pleaded guilty to all three charges: stalking or intimidating Maybury under s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007, common assault of Nixon under s 61 of the Crimes Act 1900, and armed robbery of Maybury under s 97(1) of the Crimes Act 1900.

  • What aggregate sentence was appropriate for three connected offences of varying objective seriousness?
  • Whether special circumstances existed to justify a non-parole period shorter than the statutory default (one-third of the head sentence remaining as parole)
  • Whether the offender's depressive disorder and drug addiction reduced his moral culpability and the weight to be given to general deterrence and denunciation
  • What discount applied for an early guilty plea, and how the principles in Bugmy v The Queen and the R v Henry guideline judgment applied to the sentencing exercise

Decision

Sutherland SC DCJ conducted an instinctive synthesis, weighing the objective seriousness of each offence against the offender's personal circumstances. His Honour accepted evidence of the offender's deprived background and applied the Bugmy principles, which recognise that the effects of profound social disadvantage on moral culpability do not diminish over time. The offender's relatively young age and need for extended supervision under parole also informed the sentencing approach.

The Crown resisted a reduction in moral culpability on account of the offender's diagnosed severe and recurring depressive disorder, arguing that the connected and deliberate nature of the offending over several days made such a finding inappropriate. His Honour found the matter was one of degree, concluding that the offending was reactive to the initial confrontation at Swan's premises and that the mental health condition, combined with ongoing drug addiction, played some part in the overall assessment of moral culpability.

Special circumstances were found to exist, warranting a non-parole period shorter than the standard proportion. His Honour cited the offender's relative youth, his need for an extended period of supervision on release, and the additional hardship of COVID-19 restrictions in custody. A 25 per cent discount was applied for the utilitarian value of the early guilty plea.

The court proceeded by way of an aggregate sentence rather than cumulative individual terms, first setting out indicative sentences for each offence before arriving at the combined term.

Orders Made

  • Indicative sentence for the s 13(1) stalk/intimidate offence: 6 months imprisonment
  • Indicative sentence for the s 61 common assault offence: 12 months imprisonment
  • Indicative sentence for the s 97(1) armed robbery offence: 2 years 9 months imprisonment
  • Aggregate sentence: 3 years 3 months imprisonment
  • Non-parole period: 1 year 8 months (special circumstances found)
  • Sentence backdated to commence 4 February 2021
  • Non-parole period to expire 3 October 2022; balance of term to expire 3 May 2024

Key Takeaways

  • The District Court applied Bugmy v The Queen to confirm that the mitigating effect of profound social disadvantage on moral culpability remains relevant at sentencing and does not diminish with the passage of time or the commission of further offences.
  • An aggregate sentencing approach requires the court to first nominate indicative sentences for each individual offence before settling on the combined term, even where those indicative sentences are not separately served.
  • Where an offender's mental health condition and drug addiction are established on the evidence, the sentencing court may treat those factors as reducing moral culpability and moderating the weight given to general deterrence, even when the offending is deliberate and connected across several days.
  • Special circumstances justifying a reduced non-parole period can be established by a combination of factors, including the offender's youth, the need for supervised reintegration, and the particular hardships of custody during the COVID-19 pandemic.
  • A 25 per cent discount for the utilitarian value of a guilty plea applies when the plea is entered at the earliest available opportunity.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61, 97(1)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)

Cases
- Bugmy v The Queen (2013) 249 CLR 571
- R v Henry (1999) 46 NSWLR 346