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District Court 2 June 2022

R v Stewart

[2022] NSWDC 205

Assault & violenceTheft & propertyPublic order & justice offences

Citation: R v Stewart [2022] NSWDC 205
Court: District Court of New South Wales
Date: 2 June 2022
Judge: Bennett SC DCJ

Background

The offender pleaded guilty to robbery in company, contrary to s 97(1) of the Crimes Act 1900. On 19 May 2021, at Potato Point NSW, he and another person robbed a victim of $1,200 in cash. The offender had been released on parole only two months earlier, in March 2021.

Following the robbery, witnesses attended a bowling club at Bodalla. The offender attended and assaulted one witness with a closed fist, then made a series of threatening remarks to witnesses and bystanders. Those retaliatory offences, which arose directly from the robbery being reported to police, were prosecuted separately in the Local Court. The Magistrate imposed an aggregate sentence of 16 months imprisonment, including an 8-month non-parole period, commencing 26 May 2021.

The District Court was therefore required to sentence the offender for the robbery while accounting for the pre-sentence custody already served, the revocation of his parole, and the partially served Magistrate's sentence for the related retaliatory offences.

  • What discount applied to the sentence by reason of the offender's guilty plea, and at what rate?
  • From what date should the sentence for the robbery commence, given the offender had already been serving a sentence for related retaliatory offences and a revoked parole period?
  • What weight should be given to the offender's background, including an Aboriginal upbringing in difficult circumstances, in the application of the totality principle?
  • What non-parole period was appropriate, and did special circumstances justify a departure from the standard ratio?

Decision

Guilty plea discount. The offender pleaded guilty after committal but before the matter was listed for trial, placing the matter within Part 3 Div 1A of the Crimes (Sentencing Procedure) Act 1999. Under s 25D(2)(b), the applicable discount was 10%. The court noted that, given the strength of the evidence, an acquittal at trial would have been highly unlikely.

Commencement date and totality. The court declined to backdate the sentence to 26 May 2021, which was the commencement date of both the revoked parole period and the Magistrate's sentence. The retaliatory offences, while related to the robbery, were separate in character and followed it. The court observed that the Magistrate's aggregate sentence could not have included any component for the robbery. After considering the relationship between the misconduct and the need to avoid a total sentence that was disproportionately harsh, the court fixed a commencement date of 26 August 2021, allowing for partial accumulation.

Objective seriousness and subjective factors. The robbery was treated as mid-range in objective seriousness. The offender was unarmed but acted in company, and carried a significant criminal history. The court applied the principles in R v Henry as a guideline. The offender's Aboriginal background and experience of deprivation were considered under Bugmy v The Queen, though the court found the material did not support a finding that his background so impaired his judgment that he could not make a reasoned decision to offend. Genuine remorse was accepted.

The sentence. The court determined a pre-discount sentence of 5 years and 6 months imprisonment. Applying the 10% discount produced a sentence of 4 years and 11 months. The court found special circumstances existed, justifying a non-parole period of 2 years and 6 months, which represents a departure from the standard statutory ratio.

Orders Made

  • The offender was formally convicted of robbery contrary to s 97(1) of the Crimes Act 1900.
  • Non-parole period of 2 years and 6 months, commencing 26 August 2021, expiring 25 February 2024.
  • Balance of sentence of 2 years and 5 months, commencing 26 February 2024, expiring 25 July 2026.
  • Total sentence: 4 years and 11 months.

Key Takeaways

  • Where related offences are dealt with in different courts, the sentencing court retains discretion over the commencement date of its sentence in order to apply the totality principle and avoid a cumulative punishment disproportionate to the overall offending.
  • The District Court found that retaliatory offences committed after a robbery, though causally linked to it, were sufficiently distinct in character that some degree of accumulation on the Magistrate's sentence was appropriate.
  • Under Bugmy v The Queen, an offender's Aboriginal background and experience of deprivation remain relevant to the weight given to general deterrence, but those considerations do not automatically diminish moral culpability without supporting evidence of the impact on the offender's capacity for reasoned decision-making.
  • A 10% discount for a guilty plea entered after committal but before trial listing applied under s 25D(2)(b) of the Crimes (Sentencing Procedure) Act 1999.
  • The court noted, without criticism, that it was unclear why the related Local Court offences had not been transferred to the District Court under s 166 of the Criminal Procedure Act 1986 to be dealt with alongside the robbery, which would have permitted an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(1) (robbery in company)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25D(2)(b), 53A; Part 3 Div 1A; Part 4 Div 1A
- Criminal Procedure Act 1986 (NSW), s 166

Cases
- Bugmy v The Queen [2013] HCA 37
- Callaghan v R [2006] NSWCCA 58
- Imbornone v R [2017] NSWCCA 144
- R v Henry and Ors [1999] NSWCCA 111
- R v Qutami [2001] NSWCCA 353