Citation: R v Smoday [2023] NSWDC 287
Court: District Court of New South Wales
Date: 14 April 2023
Judge: Haesler SC DCJ
Background
The offender was found guilty by a jury in November 2022 of two counts of armed robbery, one count of attempted armed robbery, and one count of larceny. The offences occurred over four days in late June and early July 2021 in the Wollongong area.
In each incident, a disguised man entered a retail outlet, brandished an improvised weapon (bottles and scissors), threatened cashiers and in one instance a customer, and took modest amounts of cash and goods. CCTV footage and DNA evidence linking clothing recovered from a friend's premises connected the offender to all three incidents. He had denied involvement when interviewed by police.
At the time of his arrest, the offender was homeless and subject to an Intensive Correction Order (a community-based custodial alternative). The sentencing court had to determine the appropriate aggregate custodial sentence, taking into account the offender's mental health, background, and personal circumstances alongside the objective seriousness of the crimes.
Legal Issues
- What was the appropriate objective seriousness of each offence, given the use of improvised weapons and the modest value of property taken?
- To what extent did the offender's mental health conditions, deprived background, and childhood sexual abuse reduce his moral culpability (that is, his degree of blameworthiness)?
- How should the court apply the Henry guideline judgment on armed robbery sentencing in light of the offender's particular subjective circumstances?
- What aggregate sentence, non-parole period, and special circumstances finding were appropriate?
Decision
His Honour characterised each offence as an "ordinary case" within the meaning of the Henry guideline: improvised weapons, rudimentary disguise, minimal planning, vulnerable single operators targeted in public-facing workplaces, and only modest property taken. The court found nothing to distinguish the three principal offences from one another in terms of objective gravity, and noted that victim distress and fear were real even in the absence of formal victim impact statements.
The court accepted that the offender's moral culpability was meaningfully reduced by the combination of a deprived childhood, trauma from child sexual abuse, and longstanding mental health conditions. Relying on Bugmy v The Queen, Nasrallah v R, and DPP (Cth) v De La Rosa, His Honour confirmed that such factors, while not excusing the conduct, bear directly on an offender's blameworthiness and must be weighed in the sentencing synthesis. The court also took into account the impact of COVID-19 on custodial conditions.
The court emphasised that the offender's conditions were longstanding and that he had not engaged in any sustained treatment. Without support and treatment, reoffending was considered likely. His Honour found special circumstances justifying an extended parole period beyond the statutory norm, expressly to allow the State Parole Authority to oversee treatment, medication, and community reintegration. The court noted, however, that the offender would not be released unless the Parole Authority was satisfied that community safety could be protected.
The larceny count (Count 3) was dealt with under section 10A of the Crimes (Sentencing Procedure) Act, meaning a conviction was recorded but no further punishment was imposed, given the aggregate sentence already imposed on the other counts.
Orders Made
- Sentence to commence from 22 July 2021 (the date the Intensive Correction Order balance was served).
- Count 3 (larceny): dealt with under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW); conviction recorded, no further punishment imposed, not included in the aggregate sentence.
- Counts 1, 2, and 4: individual indicative sentences of 3 years and 4 months' imprisonment each.
- Aggregate sentence: 5 years and 4 months' imprisonment.
- Non-parole period: 3 years and 2 months, commencing 22 July 2021, with eligibility for parole consideration from 21 September 2024.
- Parole period: 2 years and 2 months, commencing 22 September 2024.
- Total sentence to expire: 21 November 2026.
- Special circumstances found, reflecting the extended parole period.
Key Takeaways
- An offender's moral culpability can be reduced by the combined effects of childhood deprivation, trauma from child sexual abuse, and mental health conditions, even where those factors do not excuse the conduct or alter the objective seriousness of the offences.
- The Henry guideline remains the relevant benchmark for armed robbery sentencing in New South Wales, with the Court of Criminal Appeal's indication of a four-year starting point (after a late guilty plea) serving as a reference for cases falling within the ordinary range.
- Where mental health and background factors are well-established but sustained treatment has not occurred, a finding of special circumstances may be warranted to create a longer parole period, enabling supervised support following release.
- Absence of victim impact statements does not operate as a mitigating factor; the sentencing court may draw on evidence given by victims at trial to inform its assessment of the harm caused.
- Under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW), a court may record a conviction for a related minor offence without imposing additional punishment where an aggregate sentence on the principal counts already reflects the totality of the criminality.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 97(1), 117, 344A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 42A
- Crimes (Administration of Sentences) Act 1999 (NSW)
Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Legge v R [2007] NSWCCA 244
- Moodie v R [2020] NSWCCA 160
- Nasrallah v R [2021] NSWCCA 207
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14