AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 24 November 2022

R v Blackmore

[2022] NSWDC 763

Assault & violenceTheft & propertyDomestic & family violence

Citation: R v Blackmore [2022] NSWDC 763
Court: District Court of New South Wales
Date: 24 November 2022
Judge: Haesler SC DCJ

Background

The offender pleaded guilty to two offences. The first was robbery armed with an offensive weapon, contrary to s 97(1) of the Crimes Act 1900 (NSW), carrying a maximum of 20 years' imprisonment. The second was intimidation intending to cause harm, contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), carrying a maximum of 5 years' imprisonment.

The robbery occurred on 15 November 2021 at a convenience store in Wollongong. The offender approached the counter, demanded cash and two drinks, and repeatedly threatened to stab the attendant while keeping his hands down the front of his shorts. The attendant, fearing injury, opened the till and handed over $100. A broken-handled knife was later found at the scene. The intimidation offences arose from threatening statements made to mental health workers at Wollongong Hospital on 2 November 2021, during a review related to the offender's Community Treatment Order (CTO), a court-ordered mental health management plan requiring him to attend services and take medication.

The offender had a lengthy criminal history dating from the Children's Court in 2007, an intellectual disability, a significant mental illness, a visual impairment, a profoundly deprived childhood, and a history of childhood sexual abuse. He had been in custody since his arrest on 15 November 2021.

  • What sentence was appropriate for the armed robbery offence, having regard to the Henry guideline judgment and the offender's extensive subjective circumstances?
  • Whether a 25% discount for the utilitarian value of the early guilty plea was appropriate, or whether a greater discount was warranted due to the offender having served his sentence during the COVID-19 pandemic.
  • How the offender's mental illness, intellectual disability, traumatic background, and prior periods of successful community management should affect the sentence.
  • Whether the intimidation offence warranted a custodial sentence or a Community Correction Order.

Decision

Guilty plea discount. The offender's solicitor submitted that Victorian authorities permitted a larger utilitarian discount for pleas entered during the COVID-19 pandemic. Haesler SC DCJ rejected this submission. Under s 25D of the Crimes (Sentencing Procedure) Act 1999 (NSW), the utilitarian discount for indictable matters is capped at 25%, with no COVID-19 exception. The court did, however, treat the harsh conditions experienced by prisoners during the pandemic, including lockdowns and restricted access to programs and visits, as a separate matter relevant to sentence.

Objective seriousness of the robbery. The court assessed the robbery as falling towards the lower end of the range contemplated by the Henry guideline, noting that while a weapon was believed to be present it was not produced, only a small amount was taken, and the victim responded with restraint. The court acknowledged that offences of this kind cause serious harm to victims and to community trust in public institutions, but found the matter did not exceed the lower range of the guideline. That guideline, following a late plea, ordinarily produces a sentence of around four years; the court's 25% discount for the early Local Court plea reduced the appropriate starting point accordingly.

Subjective circumstances. The court applied the principles in Bugmy v The Queen (2013) 249 CLR 571, recognising that the effects of profound childhood deprivation, including sexual abuse and entrenched disadvantage, do not diminish with the number of offences committed and must be given ongoing weight. The offender's mental illness had been relatively well managed in the period before the offending, with nearly two years in the community from early 2020. His intellectual disability and history of institutionalisation also informed the sentencing assessment.

Intimidation. The court found the threats made to mental health workers were serious, particularly because such conduct undermines the safety and functioning of caring professionals. However, given the totality of the material before the court, it did not consider a custodial sentence necessary for that offence. A Community Correction Order with conditions relating to supervision and engagement with medication and treatment was imposed instead. The court noted it had no power to impose a Community Treatment Order, as that is a matter for the Mental Health Review Tribunal.

Orders Made

  • Sentence of 3 years' imprisonment imposed for the armed robbery offence, with a non-parole period of 1 year and 6 months, dating from 15 November 2021.
  • Release to supervised parole on 14 May 2023.
  • Balance of sentence (1 year and 6 months) to commence 15 May 2023, with the total sentence expiring 14 November 2024.
  • Community Correction Order of 2 years and 6 months imposed for the intimidation offence, with two conditions: accept supervision by Community Corrections and obey all reasonable directions; and engage with any recommended medications or treatment.

Key Takeaways

  • Under s 25D of the Crimes (Sentencing Procedure) Act 1999 (NSW), the utilitarian discount for a guilty plea in indictable matters is capped at 25%, and there is no COVID-19 exception, even though the harsh conditions of pandemic-era imprisonment remain a relevant sentencing consideration in their own right.
  • The Henry guideline judgment for armed robbery is not prescriptive, but courts are required by s 42A of the Crimes (Sentencing Procedure) Act 1999 (NSW) to take it into account; careful attention to its applicable range is expected.
  • Applying Bugmy, the District Court confirmed that the mitigating weight of a severely deprived and traumatic background does not diminish over time or with an accumulated criminal record; it must be reassessed and given weight on each occasion.
  • A threatening statement made to a mental health worker during a clinical review constituted the offence of intimidation intending to cause harm, and the court treated such conduct as particularly serious given its capacity to undermine professionals working in caring roles, even where it did not warrant imprisonment.
  • Where an offender's mental illness, intellectual disability, traumatic history, and previous periods of successful community management are considered together, a court may structure a sentence to provide what the judgment described as the "absolute minimum" custodial period consistent with sentencing purposes, combined with a Community Correction Order designed to support reintegration.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(1)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25D, 42A

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Moodie v R [2020] NSWCCA 160
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
- R v Millwood [2012] NSWCCA 2