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District Court 10 August 2022

R v Zombori

[2022] NSWDC 349

Assault & violenceTheft & propertyPublic order & justice offences
CRIME SENTENCE ROBBERY ARMED WITH AN OFFENSIVE WEAPON FIVE CCO’S BREACHED CALLED UP RESENTENCED.

Citation: R v Zombori [2022] NSWDC 349
Court: District Court of New South Wales
Date: 10 August 2022
Judge(s): Wilson SC DCJ

Background

The offender, a 33-year-old woman, was sentenced for a single offence of robbery armed with an offensive weapon (a kitchen knife blade without a handle) contrary to section 97(1) of the Crimes Act 1900. The offending occurred on 23 July 2021 at a service station in Wyong, where she approached a lone console operator, demanded and took $310 from the till while pointing the knife at him, causing him to use a chair as a shield and ultimately flee to a staffroom.

Police arrested the offender within minutes near the service station. She was found wearing changed clothing, carrying a bag containing the clothing worn during the robbery, and she directed police to the knife hidden in nearby shrubbery. The full amount of cash was recovered from her wallet and the paper bag.

In addition to the armed robbery charge, five Community Correction Orders (CCOs) were called up for breach, each arising from prior convictions including resisting a police officer, driving with a mid-range prescribed concentration of alcohol (PCA), driving while suspended, and contravening an apprehended violence order (AVO). The offender had entered a guilty plea in the Local Court, attracting a 25 per cent sentence discount.

  • What was the appropriate sentence for the armed robbery offence, having regard to the offender's personal circumstances, criminal history, mental health, and the utilitarian value of her guilty plea?
  • Whether the five existing CCOs had been breached by the subsequent offending, and if so, what orders should follow upon them being called up.
  • How to structure the overall sentence to reflect the relevant sentencing principles, including totality.

Decision

His Honour assessed the objective seriousness of the armed robbery as falling below the mid-range of offending of its type. The offender's moral culpability was found to be reduced by her significant mental health difficulties, substance dependency, and personal circumstances, though these factors did not excuse the conduct.

The court applied the 25 per cent guilty plea discount and took into account the time the offender had spent in custody since her arrest on 23 July 2021. Having regard to her criminal history, mental health, the principle of totality across the CCO breaches, and the need for rehabilitation, the court structured the sentence to include a term of full-time imprisonment followed by an Intensive Correction Order (ICO).

All five CCOs were found to have been breached by the subsequent offending. The court called up four of the five outstanding CCOs (the fifth having already been resentenced previously) and imposed fresh CCOs in respect of each of those four prior convictions, rather than terms of imprisonment, reflecting the offender's reduced moral culpability and the totality principle.

Orders Made

  • For the armed robbery offence: a sentence of imprisonment with an ICO of 2 years commencing 10 August 2022 and expiring 9 August 2024.
  • The ICO was subject to standard conditions including no further offending and supervision by a community corrections officer.
  • Additional ICO conditions included: 200 hours of community service work; a rehabilitation and treatment condition requiring the offender to follow all medical recommendations; and an abstention condition from alcohol and all illicit drugs.
  • The offender was directed to contact the Port Macquarie Community Corrections Office by telephone within 48 hours of release from prison.
  • For each of the four called-up CCO breaches (resist officer in execution of duty; two counts of driving while suspended; and driving with mid-range PCA): separate CCOs of 2 years each, commencing 10 August 2022 and expiring 9 August 2024, subject to conditions including no further offending, a rehabilitation and treatment condition, and an abstinence condition for illicit drugs and alcohol.
  • The offender was directed to attend the court registry to sign the orders.

Key Takeaways

  • The District Court treated the maximum penalty of 20 years imprisonment under section 97(1) of the Crimes Act 1900 as a guidepost reflecting the community's view of armed robbery's seriousness, while assessing this particular offending as falling below the mid-range.
  • A guilty plea entered at the committal stage attracted a 25 per cent sentence discount, recognising the utilitarian value of the plea to the administration of justice.
  • Reduced moral culpability, arising from mental health difficulties and substance dependency, operated as a mitigating factor in both the primary sentence and the resentencing on the CCO breaches, though it did not displace the need for a custodial disposition.
  • Where multiple CCOs are called up simultaneously, the totality principle informs the overall sentencing approach, and the court may impose fresh CCOs rather than additional imprisonment terms where circumstances warrant.
  • An ICO with rehabilitation, treatment, community service, and abstention conditions was deployed as the sentencing instrument to balance punishment with the offender's prospects for rehabilitation.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(1) (robbery armed with an offensive weapon)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 8, 73, 73A(2)

Cases
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
- R v Henry (1999) 46 NSWLR 346