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District Court 27 April 2022

R v Dobbs

[2022] NSWDC 129

Assault & violenceDrugsTheft & property
SENTENCING ROBBERY ARMED WITH AN OFFENSIVE WEAPON FORM 1 OFFENCES LARCENY COMMON ASSAULT BIZARRE FACTS

Citation: [2022] NSWDC 129
Court: District Court of New South Wales
Date: 27 April 2022
Judge: Grant DCJ

Background

The offender, a large bearded man with a diagnosed schizophrenia and a substance use disorder, was sentenced for robbery armed with an offensive weapon. On 3 June 2021, he attended a shopping centre in Albury and shoplifted items of very low value from several stores. He also stole a meat cleaver from Kmart, which he later produced at a nearby restaurant while attempting to obtain food and drinks without payment. He told the restaurant worker he had a lighter and a knife, took two sodas, then handed one back and left without paying.

The offender was not taking his antipsychotic medication at the time, had not eaten for several days, had been awake for two days due to methamphetamine use, and had been spending his money on drugs rather than food. A forensic psychiatrist concluded that the unmedicated schizophrenia materially contributed to his offending.

In addition to the principal offence, the offender asked the court to take into account four further matters on a Form 1: three charges of larceny and one charge of common assault (against a shopping centre security guard). He had entered an early plea of guilty in committal proceedings, and was on both parole and an Intensive Correction Order at the time of the offending.

  • What sentence was appropriate for robbery armed with an offensive weapon under s 97(1) of the Crimes Act 1900, given the offender's mental illness, substance use, and the low objective seriousness of the offending?
  • Whether, and to what extent, the offender's schizophrenia reduced his moral culpability and warranted departure from the guideline judgment in R v Henry [1999] NSWCCA 111.
  • How the Form 1 offences should be reflected in the overall sentence.
  • Whether special circumstances existed justifying a variation to the standard non-parole period ratio.
  • How pre-sentence custody and the concurrent service of revoked parole and an Intensive Correction Order should be treated.

Decision

Grant DCJ assessed the objective seriousness of the offending as low, though not at the very bottom of the range. The robbery was unsophisticated: the offender made no attempt to disguise himself, the CCTV captured the entire incident, and apprehension was inevitable. The threat posed by the meat cleaver was implied rather than direct, involving a brief wave of the weapon rather than any direct presentation toward the victim. No physical violence occurred and the goods involved were of minimal value. The offender's motivation was hunger, not a desire to harm.

His Honour found that the offender's untreated schizophrenia materially contributed to the offending, reducing his moral culpability. The forensic psychiatrist's report confirmed that the illness, combined with the absence of medication and the effects of drug use, significantly impaired the offender's functioning. However, the court acknowledged the tension between mitigating for mental illness and the need to protect the community, particularly given the offender's history of non-compliance with treatment conditions imposed by earlier court orders.

His Honour departed from the Henry guideline judgment, holding that exceptional circumstances were not required for such a departure. The starting point of 3 years and 4 months fell below the undiscounted range in Henry, justified by the combination of low objective seriousness, the indirect nature of the threat, the absence of physical violence, and the very low value of goods involved. A 25% discount for the early guilty plea was applied, reducing the sentence to 2 years and 6 months.

Special circumstances were found, and the non-parole period was varied to 50% of the head sentence (rather than the standard ratio), primarily to allow for an extended period of supervised release to support the offender's mental health management and reintegration. The sentence was to commence on 3 August 2021, reflecting partial accumulation on the revoked parole and Intensive Correction Order.

Orders Made

  • Head sentence of 2 years and 6 months imprisonment, commencing 3 August 2021 and expiring 2 February 2024.
  • Non-parole period of 1 year and 3 months (50% of head sentence, reflecting a finding of special circumstances), with eligibility for parole on 2 November 2022.
  • The report of Dr Richard Furst (forensic psychiatrist, dated 14 April 2022) to be forwarded to Justice Health, Corrective Services NSW, Community Corrections, and the Albury Community Mental Health Service.

Key Takeaways

  • A departure from the R v Henry guideline judgment for armed robbery does not require exceptional circumstances; the combination of low objective seriousness, indirect threats, minimal value of stolen goods, and reduced moral culpability from untreated mental illness can justify a sentence below the guideline range.
  • Where an offender's diagnosed and untreated mental illness materially contributes to the commission of an offence, this is a recognised basis for reducing moral culpability, even when the offender has voluntarily refused medication.
  • The District Court applied the established tension in sentencing law between mental illness as a mitigating factor and the countervailing need for community protection, particularly where the offender has a history of non-compliance with treatment conditions.
  • Under the Form 1 procedure, the sentencing court accounts for the totality of criminality across both the principal offence and the additional matters, which may result in a sentence greater than would have been imposed for the principal offence alone.
  • A significant finding of special circumstances, warranting a non-parole period of 50% of the head sentence, may be appropriate where extended supervised release is necessary to support ongoing mental health treatment and community reintegration.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61, 97(1), 117
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 21A(2)(j), 25D(2)(a), 32, 44(2)

Cases:
- R v Henry [1999] NSWCCA 111 (guideline judgment for armed robbery)
- Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518 (Form 1 principles)
- Legge v R [2007] NSWCCA 244 (role of guideline judgments; departure without exceptional circumstances)
- Muldrock v The Queen (2011) 244 CLR 120 (sentencing methodology)
- Ith v R [2013] NSWCCA 280 (commencement date and concurrency of sentences)
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- Jackson v R [2010] NSWCCA 162
- McKinnon v R [2020] NSWCCA 106
- R v Stonestreet [2020] NSWCCA 212
- Valentine v R [2020] NSWCCA 116
- Thach v R [2018] NSWCCA 252
- R v Israil [2002] NSWCCA 255
- R v Kelso [2020] NSWDC 157
- R v Tangi (No 12) [2020] NSWSC 547
- DPP v Tennison [2020] VCC 343
- R v Anderson [1981] VR 155