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District Court 10 June 2022

R v Brayden Stephens

[2022] NSWDC 213

DrugsTheft & propertyFirearms & weapons
CRIMINAL LAW ORGANISED MEET TO PURCHASE DRUGS REMORSE NOT ESTABLISHED MEDIUM RISK OF RE OFFENDING SPECIAL CIRCUMSTANCES FOUND

Citation: [2022] NSWDC 213
Court: District Court of New South Wales
Date: 10 June 2022
Judge: Hatzistergos DCJ

Background

Following a three-day trial, a jury convicted the offender of robbery while armed with a dangerous weapon under s 97(2) of the Crimes Act 1900 (NSW). The offence carries a maximum penalty of 25 years imprisonment with no standard non-parole period.

The offending occurred in the early hours of 7 January 2021 at a skate park car park in West Dapto. The offender had arranged, via text message, to purchase approximately 28 grams of methylamphetamine from an acquaintance. The meeting location changed during the night from a McDonald's car park to a more isolated spot with limited lighting. When the drug supplier and his associate arrived, an unidentified male emerged from bushes armed with a firearm. The offender simultaneously produced a handgun and pointed it at the victim.

After the drug supplier fled on foot, the offender approached the victim, pointed the handgun at him, and demanded his phone and valuables. The victim handed over his mobile phone. Two further unidentified males then took the victim's car. The offender, who was wearing a moonboot and could not run, returned to his own vehicle and drove away. Police arrested him five days later.

  • What was the appropriate sentence for robbery while armed with a dangerous weapon, having regard to the guideline judgment in R v Henry (1999) 46 NSWLR 346?
  • To what extent, if any, did the offender's drug addiction and underlying trauma reduce his moral culpability?
  • Whether the offender's criminal antecedents, commission of the offence on conditional liberty (parole), and absence of a guilty plea were relevant aggravating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW)?
  • Whether special circumstances existed to justify a departure from the standard ratio of non-parole period to total sentence?

Decision

Objective seriousness and the R v Henry guideline

His Honour found the offending to be serious. It was committed in company with two other armed men, involved a degree of planning (including changing the meeting location and positioning co-offenders in advance), and included the production and pointing of firearms accompanied by threats. Although no physical force was used and the item taken (a mobile phone) was of limited monetary value, the intensity of the threatened violence was significant. His Honour determined that the features of the case fell outside the criteria in the R v Henry guideline, which is directed primarily at street robberies. The offender played a critical role by initiating contact with the victim, though the extent of his role in organising the broader scheme could not be fully determined given the other two participants remained unidentified.

Moral culpability and drug addiction

A psychologist's report detailed that the offender had lost his father at age three and suffered childhood sexual abuse at age six. These experiences contributed to longstanding trauma, anxiety and depression, and eventually to a five-year history of heavy polysubstance use. His Honour accepted that the offending was driven in part by substance addiction rooted in this traumatic history. Consistent with R v Henry, drug addiction does not excuse criminal conduct, but the circumstances were accepted as a factor that reduced moral culpability to some degree by explaining the offender's state of mind and impaired capacity for judgment.

Aggravating factors and subjective circumstances

The offending was aggravated by commission in company (s 21A(2)(e)) and while on parole (s 21A(2)(j)). The offender had prior convictions from 2017 for offences including armed robbery-type conduct and assault, for which he had served a sentence of four years with a non-parole period of two and a half years. His Honour found those antecedents did not warrant any leniency and that no genuine remorse had been established. There was no guilty plea.

Rehabilitation and special circumstances

His Honour accepted that, provided the offender continued to engage with treatment, there were reasonable prospects of rehabilitation, and he was assessed at medium risk of reoffending. Given the offender's youth, the accumulation of the new sentence on a previous sentence, and the need for an extended period of supervised parole to support rehabilitation and guard against institutionalisation, special circumstances were established. This justified a departure from the standard ratio of non-parole period to total sentence.

Orders Made

  • Non-parole period of 3 years and 4 months, commencing 12 July 2021 and expiring 11 November 2024.
  • Additional term of 2 years and 2 months, from 12 November 2024 to 11 January 2027, during which the offender is eligible for release on parole.
  • Earliest possible release date: 11 November 2024.

Key Takeaways

  • The District Court confirmed that drug addiction rooted in trauma does not excuse offending but may be taken into account as a factor reducing moral culpability, consistent with the approach in R v Henry, where it helps explain the offender's state of mind and reduced capacity for judgment.

  • A sentence for robbery while armed with a dangerous weapon need not follow the R v Henry guideline criteria where the facts of the case fall outside the typical street robbery scenario, particularly where the offending involves coordinated planning, multiple armed participants, and a changing of locations to enable an ambush.

  • Commission of the offence in company and while on parole are distinct statutory aggravating factors under s 21A(2)(e) and (j) of the Crimes (Sentencing Procedure) Act 1999 (NSW) respectively, and both applied on the facts.

  • Special circumstances justifying a longer parole period were established by a combination of the offender's youth, the accumulation of sentences, reasonable prospects of rehabilitation, and the need to avoid institutionalisation.

  • Remorse will not readily be inferred from limited conduct at the scene (the offender said "I'm sorry" to the victim) without other supporting evidence, and the absence of a guilty plea remains a relevant consideration.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) s 97(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 5, 21A(2)(e), 21A(2)(j)

Cases
- R v Henry (1999) 46 NSWLR 346