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District Court 17 March 2022

R v James

[2022] NSWDC 66

Assault & violenceTheft & property
CRIME SENTENCE ROBBERY IN COMPANY WHETHER S 5 THRESHOLD CROSSED

Citation: R v James [2022] NSWDC 66
Court: District Court of New South Wales
Date: 17 March 2022
Judge(s): Abadee DCJ

Background

The offender pleaded guilty to robbery in company under s 97(1) of the Crimes Act 1900 (NSW), carrying a maximum penalty of 20 years' imprisonment. The offence occurred on 2 November 2020 near Central Railway Station in Haymarket, when the offender confronted her former partner, assaulted him, and participated in a joint criminal enterprise during which a co-offender stole the victim's mobile phone (valued at approximately $2,000).

The offence arose after the offender encountered the victim unexpectedly. She approached him over a debt she believed he owed her mother from a car purchase, and the situation escalated into a coordinated group attack. Two co-offenders participated in the assault and theft.

A psychologist's report diagnosed the offender with ADHD, Generalised Anxiety Disorder, and Major Depressive Disorder, and linked those conditions to her offending. The offender had a prior criminal record involving violent offences, and had previously been subject to supervised community-based sentences.

  • Whether the offender's mental health impairments reduced her culpability for the offending
  • Whether Bugmy principles applied to connect her deprived background to those impairments
  • How the R v Henry guideline judgment applied to the objective gravity of the offending
  • Whether the s 5 threshold for a sentence of imprisonment was crossed
  • Whether that term of imprisonment should be served by way of Intensive Correction Order (ICO) rather than full-time custody

Decision

Mental impairment and Bugmy principles. Abadee DCJ accepted the psychologist's opinion that the offender's decision-making capacity was "somewhat impacted" at the time of the offending by her mental health conditions. Both the Crown and defence accepted that Bugmy principles were engaged: the offender's mental impairment was the product of a seriously deprived childhood, including exposure to domestic violence, placement in foster care at a young age, an unstable adolescence, and a sexual assault perpetrated upon her. The Court found a direct connection between that background, her mental conditions, and the offending.

Effect on culpability. The combined effect of the Bugmy findings and the independent mental disorder diagnosis reduced the offender's culpability. This moderated the weight ordinarily given to general and specific deterrence and retribution, and was likely to exacerbate the impact of punishment. However, the Court noted these factors did not all point in one direction: the offender's prior record, the aggravated nature of the offence, and the absence of a demonstrated commitment to treatment elevated concerns about community protection and cast doubt on rehabilitation prospects.

Objective seriousness and the Henry guideline. The Court assessed the offending as serious in its objective features: it occurred at night in a public place, involved three participants in a joint enterprise, the victim was assaulted multiple times, property was stolen, and the offender showed no immediate remorse when spoken to by police shortly afterward. These features were weighed against the offender's subjective circumstances, including her youth (she was 22 at the time of sentence), the guilty plea (attracting a 25% discount), and her mental health background.

Sentence. The District Court was satisfied the s 5 threshold for a term of imprisonment was crossed. However, taking into account all subjective factors, the Court concluded the sentence should be served by way of Intensive Correction Order rather than full-time custody. The ICO was described as a meaningful step up from prior community-based penalties, a strong deterrent, and the option most likely to support rehabilitation for the community's ultimate benefit.

Orders Made

  • The offender was convicted of robbery in company.
  • Sentenced to imprisonment for 1 year and 6 months, commencing 17 March 2022 and expiring 16 September 2023.
  • The sentence is to be served by Intensive Correction Order, subject to the following conditions:
  • Not to commit any offence
  • To submit to the supervision of a community corrections officer and comply with reasonable directions
  • Community service work of 200 hours
  • Rehabilitation and treatment condition requiring engagement with treatment identified in the psychologist's report, as modified by the offender's current counsellor or mental health practitioner
  • Non-association condition prohibiting contact with the victim, and the two co-offenders
  • To make telephone contact with the Mount Druitt Community Corrections Officer within 7 days
  • No action to be taken in relation to prior bonds.

Key Takeaways

  • The District Court confirmed that Bugmy principles can apply where a mental health impairment has its roots in childhood deprivation and disadvantage, reducing an offender's culpability even for serious offences such as robbery in company.

  • A diagnosis of ADHD, Generalised Anxiety Disorder, and Major Depressive Disorder, supported by expert evidence linking those conditions to the offending, can operate as a separate and additional factor reducing culpability beyond the Bugmy analysis.

  • Reduced culpability from mental impairment and deprived background does not automatically reduce all sentencing considerations uniformly: the same findings that moderate deterrence and retribution may simultaneously heighten concerns about community protection and rehabilitation where an offender has a prior record and no demonstrated treatment commitment.

  • Where the s 5 threshold for imprisonment is crossed, a sentence served by way of ICO remains available and may be appropriate where it represents a genuine step up from prior penalties and offers the best prospects of rehabilitation, even for an offender who has previously breached a supervised sentence.

  • Under s 97(1) of the Crimes Act 1900 (NSW), robbery in company carries a maximum of 20 years' imprisonment with no standard non-parole period, and the R v Henry guideline judgment remains a relevant reference point for assessing the objective gravity of offending in this category.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) ss 95, 97
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5, 66

Cases
- Bugmy v The Queen (2013) 249 CLR 571 (principles discussed, though not listed in metadata)
- Owens v R [2017] NSWCCA 16
- R v Henry (1999) 46 NSWLR 346
- R v Murchie (1999) 108 A Crim R 482