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District Court 18 August 2022

R v Hintz

[2022] NSWDC 750

Assault & violenceDrugsTheft & property
CRIME ARMED ROBBERY SENTENCE RELEVANT FACTORS ON SENTENCE UNREPRESENTED OFFENDER YOUNG FIRST OFFENDER APPLICATION OF HENRY GUIDELINE

Citation: R v Hintz [2022] NSWDC 750
Court: District Court of New South Wales
Date: 18 August 2022
Judge: Haesler SC DCJ

Background

The offender pleaded guilty in the Local Court to robbery armed with an offensive weapon, contrary to s 97(1) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 20 years imprisonment. The offence occurred on 6 June 2021 at a shopping centre car park in Figtree, where the offender approached a man in his 60s seated in his car, grabbed him, and demanded his wallet while holding a stainless-steel carving knife with a blade approximately 30 centimetres long. The victim handed over his wallet. The offender subsequently used stolen credit cards for minor purchases, and those matters were placed before the court on a Form 1.

The offender, born in 1998, had been legally represented in the Local Court but dismissed his lawyers before sentencing on the basis that their fees would deplete funds he needed for rehabilitation on release. He proceeded unrepresented at sentence in the District Court, gave evidence, and was questioned by both the judge and the Crown Prosecutor.

The offender's background featured significant hardship. His mother died in 2010 and his father died in 2014, when the offender was 16. The family unit fractured as a result. He later moved interstate for work, developed a methylamphetamine addiction, lost his employment, and returned to the Wollongong area where he was couch surfing and without stable support when the offence occurred.

  • Whether the R v Henry guideline judgment applied to the offence and, if so, how it should be applied in the circumstances of this case.
  • The weight to be given to the offender's youth, immaturity, childhood trauma, and drug use as mitigating factors.
  • Whether the Form 1 matters (dishonestly obtaining property by deception through use of stolen credit cards) affected the sentence for the principal offence.
  • Whether special circumstances existed justifying a departure from the standard non-parole period ratio.
  • The appropriate sentence, including the impact of the 25% utilitarian discount for the early guilty plea and the conditions of custody during the COVID-19 pandemic.

Decision

Application of the Henry guideline. His Honour acknowledged the obligation under s 43A of the Crimes (Sentencing Procedure) Act 1999 (NSW) to take the Henry guideline into account, while noting that it is a guideline and not a "tramline," citing R v Legge [2007] NSWCCA 244. The guideline was developed partly in response to perceived undue leniency towards young offenders who commit armed robbery. His Honour applied it as a relevant, but not determinative, consideration.

Objective seriousness. The offence was assessed as serious. The victim was in a vulnerable position, the weapon was a substantial knife, and although limited physical violence was used, there was a real and credible threat. His Honour observed that the victim could not have known whether the offender intended to use the weapon, and that the offender's drug use at the time made him more dangerous and unpredictable, not less culpable.

Mitigating factors. His Honour accepted that the offender's childhood trauma, the loss of both parents at a young age, the collapse of his family, and the resulting drug addiction reduced his moral culpability to a degree, without excusing the offence. Youth and immaturity were also recognised as genuine mitigating factors. The robbery appeared to be spontaneous rather than planned, as the proceeds were spent on food and other low-value items. The offender expressed remorse and demonstrated some insight into the impact on his victim. He was treated as a first offender for sentencing purposes.

Special circumstances and sentence structure. His Honour found special circumstances, reducing the non-parole period from the standard 75% to 50% of the head sentence. This reduction reflected the offender's need for an extended period of supervision and access to rehabilitation programmes on release, including the complexity of arranging parole supervision cross-jurisdictionally with Western Australia. The pre-sentence custody period during the COVID-19 pandemic, during which the offender was confined to his cell for 70 days, was also taken into account. A 25% reduction was applied for the early guilty plea. The notional pre-discount sentence was 4 years and 6 months (rounded down), producing a head sentence of 3 years and 4 months.

Orders Made

  • Total sentence of 3 years and 4 months imprisonment.
  • Non-parole period set at 50% of the head sentence (reflecting a finding of special circumstances; the standard ratio is 75%).
  • Sentence backdated to 6 August 2021, the date the offender entered custody.
  • Earliest eligible parole date: 5 April 2023.
  • Parole period of 1 year and 8 months to commence 6 April 2023, subject to a decision by the State Parole Authority.

Key Takeaways

  • The District Court confirmed that the Henry guideline for armed robbery must be taken into account under s 43A of the Crimes (Sentencing Procedure) Act 1999 (NSW), but does not operate as a rigid constraint on sentencing discretion.
  • Childhood trauma, the loss of both parents at a young age, and resulting drug dependency were accepted as reducing moral culpability to a degree, while the court made clear these factors do not excuse the offending and that drug use at the time of the offence increases rather than reduces the objective danger posed.
  • A Form 1 matter that is an ordinary and foreseeable consequence of the principal offence (such as using credit cards stolen during a robbery) should not be double-counted when assessing the seriousness of the robbery itself.
  • Special circumstances justifying a departure from the standard 75:25 non-parole ratio can arise from a young offender's need for extended post-release supervision and access to rehabilitation programmes, including where parole arrangements require cross-jurisdictional coordination.
  • The State Parole Authority retains independent decision-making power over whether an offender sentenced to more than three years is actually released on the earliest eligible date, a point the sentencing judge emphasised directly to the unrepresented offender.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 43A, 37

Cases
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- Moodie v R [2020] NSWCCA 160
- R v Legge [2007] NSWCCA 244
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2013] NSWCCA 115; (2002) 56 NSWLR 146