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District Court 26 November 2021

R v Wharerau

[2021] NSWDC 790

Assault & violenceTheft & property

Citation: R v Wharerau [2021] NSWDC 790
Court: District Court of New South Wales
Date: 26 November 2021
Judge: M L Williams SC DCJ

Background

The offender, a 19-year-old New Zealand citizen, walked into a convenience store in Bondi carrying a brick, demanded money from the cashier, threatened to kill him, smashed the brick on the cash register, and took $332 before leaving. He had no prior New South Wales convictions, though minor juvenile matters existed on his Western Australian record. He was sober at the time of the offence.

The day after the robbery, the offender called emergency services and voluntarily surrendered to police outside a Centrelink in Surry Hills. He made full admissions and identified himself in CCTV footage. He told police he called because he felt bad about what he had done.

Psychiatric assessment by Dr Richard Furst revealed the offender had been diagnosed with schizophrenia and alcohol and substance use disorder. He had a history of drug-induced psychosis, had been hospitalised in the weeks before the offending, and had discontinued his anti-psychotic medication shortly after discharge. He was described as particularly vulnerable in custody, especially during the COVID-19 pandemic.

  • What sentence was appropriate for a guilty plea to robbery armed with an offensive weapon under s 97(1) of the Crimes Act 1900, carrying a maximum of 20 years imprisonment?
  • How should the guideline judgment in R v Henry apply, and what adjustments were warranted in the circumstances?
  • What weight should be given to the offender's mental illness, youth, self-surrender, early plea, and remorse in mitigation?
  • Whether special circumstances existed to justify a non-parole period proportionally shorter than the statutory norm.

Decision

The court applied the guideline judgment in R v Henry, which identifies a typical range of 4 to 5 years for the full term in armed robbery matters. However, Williams SC DCJ found that several factors justified substantial departure downward from that range. The offender pleaded guilty at the earliest opportunity, voluntarily surrendered before any investigation was underway, and made full admissions. His self-surrender, in particular, was described as warranting a significant reduction beyond the discount already available for an early plea, consistent with s 23 of the Crimes (Sentencing Procedure) Act 1999.

The court accepted Dr Furst's psychiatric opinion in full. Although the offending was not directly caused by psychotic symptoms such as hallucinations or delusions, the court accepted that the offender's schizophrenia broadly impaired his decision-making, consequential thinking, and self-care. The court noted that a custodial sentence was more onerous on him than for the average inmate, given his serious mental illness, suicidal ideation, and the particularly restrictive conditions of custody during the COVID-19 pandemic, including limited visitation and frequent lockdowns.

The Crown did not oppose a finding of special circumstances. The court agreed, citing the offender's youth, first time in custody, mental illness requiring ongoing treatment, and the need for an extended supervision period in the community. Rehabilitation was treated as having greater weight than punishment and general deterrence in the circumstances, consistent with the policy considerations applicable to young offenders.

Orders Made

  • The offender is convicted of the offence of robbery armed with an offensive weapon.
  • A sentence of 2 years and 6 months imprisonment, commencing 28 March 2021, is imposed.
  • A non-parole period of 14 months is imposed, expiring 27 May 2022.
  • Special circumstances are found.
  • The court made a recommendation (without formal power to direct) that the offender be transferred to Oberon Correctional Centre.

Key Takeaways

  • The District Court confirmed that self-surrender under s 23 of the Crimes (Sentencing Procedure) Act 1999 can justify a significant reduction in sentence beyond the discount available for an early guilty plea, particularly where the surrender was the primary reason the investigation concluded quickly.

  • A finding of schizophrenia or other serious mental illness does not require a direct causal link between the illness and the offending to be relevant on sentence. The court accepted that broader impairment to decision-making and consequential thinking, even without psychosis driving the criminal act, can reduce moral culpability.

  • Custodial conditions during the COVID-19 pandemic, including restricted visitation and frequent lockdowns, were recognised as a legitimate sentencing consideration that can increase the effective weight of a term of imprisonment, particularly for vulnerable offenders.

  • Where a young offender is before the court for the first time, the guideline range in R v Henry does not operate as a floor. Mitigating factors combining youth, mental illness, early plea, remorse, and self-surrender can cumulatively support a sentence well below that range.

  • Special circumstances were established on the basis of the offender's mental illness, youth, first period of custody, and the need for extended supervised release to support rehabilitation and medication compliance in the community.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1) (robbery armed with an offensive weapon)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 23 (discount for assistance and other factors including self-surrender)

Cases:
- R v Henry (1999) NSWLR 346 (Court of Criminal Appeal guideline judgment on armed robbery sentencing)