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District Court 15 December 2022

R v AMBLER

[2022] NSWDC 627

Theft & propertyFirearms & weapons
CRIMES ARMED ROBBERY MENTAL HEALTH ISSUES VOLUNTARILY CONFESSED TO POLICE ASSISTANCE TOO SERIOUS TO BE DEALT WITH BY ICO

Citation: R v Ambler [2022] NSWDC 627
Court: District Court of New South Wales
Date: 15 December 2022
Judge: Lerve DCJ

Background

The offender, a 23-year-old man, entered a Coles Express Service Station in Wagga Wagga at approximately 2.40am on 25 March 2022. Wearing a beanie, mask, gloves and a hoodie, he produced what appeared to be a handgun and told the employee on duty that it was a robbery. The employee handed over approximately $120 in cash. The entire incident lasted less than 27 seconds, and it was later established that the weapon was a toy rather than a real or imitation firearm.

Later that same evening, police found the offender in possession of a large knife, which he disclosed voluntarily. In the early hours of 26 March 2022, the offender attended the police station of his own accord, told officers he wanted to hand himself in, and admitted to the armed robbery. Police had not yet identified him as the perpetrator.

The offender pleaded guilty at the Local Court and maintained that plea at the District Court sentence hearing. The central dispute at sentencing was whether the matter could be disposed of by way of an Intensive Correction Order (ICO), an alternative to full-time imprisonment that allows a sentence to be served in the community under strict supervision.

  • How serious was the offending, assessed against the guideline judgment in R v Henry & Ors (1999) 46 NSWLR 346, which sets out a framework for sentencing armed robbery?
  • What discount should apply for the early guilty plea and the offender's voluntary confession (treated as assistance to authorities)?
  • What weight should be given to the offender's mental health condition, including a psychiatric finding of causal connection between that condition and the offending?
  • Was an Intensive Correction Order an appropriate disposition, or did the nature of the offence require full-time imprisonment?
  • Were special circumstances established, warranting an adjustment to the standard ratio of non-parole period to total sentence?

Decision

Lerve DCJ accepted the agreed submission from both parties that the offending fell below the level of seriousness contemplated by the Henry guideline, though the Crown characterised it as "not significantly below." The use of an object intended to be perceived as a handgun, the vulnerability of the lone night-shift worker, and the limited but real degree of planning all pointed to a matter of some gravity. The absence of actual violence and the small sum taken were mitigating factors in the objective assessment.

The offender's mental illness was treated as a meaningful mitigating consideration. Psychiatric evidence from Dr Calvin established a causal link between the offending and the offender's untreated mental illness, compounded by substance misuse and a deteriorating social situation. Consistent with principles from Bugmy v The Queen and the reasoning in Tepania v R [2018] NSWCCA 247, the court took this causal connection into account in assessing the offender's moral culpability, reducing the weight given to general deterrence accordingly.

The court allowed a combined discount of 55 per cent: 25 per cent for the utilitarian value of the early guilty plea, and a further 30 per cent for the offender's voluntary confession to police before he had been identified as a suspect. His Honour treated that self-surrender as akin to assistance to authorities, consistent with the approach taken in R v Ellis (1986) 6 NSWLR 603 and related authorities.

Despite those mitigating factors, the court rejected the submission that an ICO was appropriate. The offence was an armed robbery of a lone worker in the early hours of the morning, and Lerve DCJ concluded the objective seriousness, taken together with all relevant considerations, made full-time imprisonment necessary. The starting point was 3 years and 9 months, reduced to approximately 1 year and 10 months after the combined discount. Special circumstances were found to exist, producing a non-parole period to total sentence ratio of less than 50:50, justified by the offender's mental health needs, his age, his first-time experience of custody, and the need for extended supervision on parole to ensure compliance with treatment and medication.

Orders Made

  • The offender was convicted of armed robbery.
  • Taking into account the Form 1 matter (possession of a knife in a public place), the offender was sentenced to a non-parole period of 9 months, dated from 24 March 2022 and expiring 23 December 2022.
  • A parole period of 13 months was to follow, commencing 24 December 2022 and expiring 23 January 2024.
  • The offender was to be released to statutory parole at the expiration of the non-parole period.
  • The court recommended in the strongest terms that parole be conditioned on the offender accepting supervision by the Department of Community Corrections and complying with all reasonable directions relating to ongoing mental health treatment, counselling, and medication.
  • A copy of Dr Calvin's psychiatric report was directed to be forwarded to the Department of Community Corrections.

Key Takeaways

  • A voluntary, unprompted confession to police before investigators have identified the offender as a suspect can attract a significant sentencing discount, treated similarly to assistance to authorities under principles derived from R v Ellis.
  • Where psychiatric evidence establishes a causal connection between an offender's mental illness and the commission of an offence, the sentencing court may reduce the weight given to general deterrence and treat the illness as a factor reducing moral culpability.
  • The District Court confirmed that an Intensive Correction Order is not available for armed robbery where the objective seriousness of the offence, even discounted by strong subjective factors, remains above the threshold at which full-time imprisonment becomes necessary.
  • Special circumstances justifying a departure from the standard non-parole period ratio can be found where an offender is experiencing custody for the first time, has significant mental health needs requiring treatment, and requires extended parole supervision to support rehabilitation.
  • Applying the Henry guideline does not require mechanical comparison; the court undertakes a holistic assessment that accounts for all features of the individual offending and the individual offender.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Summary Offences Act 1988 (NSW), s 11C(1)

Cases:
- R v Henry & Ors (1999) 46 NSWLR 346 (armed robbery guideline judgment)
- R v Ellis (1986) 6 NSWLR 603 (voluntary disclosure and sentencing discount)
- Bugmy v The Queen [2013] HCA 37 (disadvantage and moral culpability)
- Tepania v R [2018] NSWCCA 247 (mental disorder and objective gravity)
- Aslan v R [2014] NSWCCA 114
- Casella v R [2019] NSWCCA 201
- Cross v R [2019] NSWCCA 280
- DPP (Cth) v De La Rosa (2010) NSWLR 1
- Engert v R (1995) 84 A Crim R 67
- McKinley v R [2022] NSWCCA 14
- Ngati v R [2018] NSWCCA 32
- Panetta v R [2016] NSWCCA 85
- Pullitano v R [2010] NSWCCA 85
- Quinn v Commonwealth DPP [2021] NSWCCA 294
- R v AA [2017] NSWCCA 84
- R v Barbaro & Zirrili [2014] HCA 2
- R v Boney [2008] NSWCCA 313
- R v Fangaloka [2019] NSWCCA 173
- Karout v R [2019] NSWCCA 253