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District Court 13 October 2023

R v Robertson

[2023] NSWDC 426

Assault & violenceTheft & property
CRIME

Citation: R v Robertson [2023] NSWDC 426
Court: District Court of New South Wales
Date: 13 October 2023
Judge: Mahony SC DCJ

Background

The offender, a man aged 31 at the time of the offence, was sentenced for aggravated break and enter with intent to commit a serious indictable offence under s 112(2) of the Crimes Act 1900. The offence carries a maximum penalty of 20 years imprisonment and a standard non-parole period of five years. The aggravating circumstance was that the offender acted in company with three co-offenders.

In the early hours of 13 February 2022, the offender and three others drove to a residential premises at Tempe as part of an agreement to intimidate the occupants. Two of the co-offenders were armed, one with a white pole and one with a machete. The group forced entry by smashing a rear glass sliding door, and the co-offenders assaulted two occupants inside before all four left the scene. The offender's own participation was limited to entering the courtyard and being present, rather than directly participating in the violence or the forced entry.

The offender was arrested on 16 February 2022, but because he was already serving a sentence for earlier offences, he was not in custody specifically for the index offence until 5 January 2023. He had pleaded not guilty and was ultimately convicted, receiving only a 5% discount on sentence rather than the 25% utilitarian discount afforded to co-offenders who had pleaded guilty in the Local Court.

  • What sentence was appropriate having regard to the objective seriousness of the offence and the offender's particular level of participation?
  • How did the principle of parity apply given that co-offenders Rutherford and Risati had already been sentenced to shorter terms, with a 25% discount for early guilty pleas?
  • What weight should be given to the offender's significant history of poly-substance abuse and its effect on his moral culpability?
  • Whether special circumstances existed justifying a variation of the standard ratio between head sentence and non-parole period.

Decision

Mahony SC DCJ found that the offender's role in the offence was materially less serious than that of his co-offenders. He did not participate in the forced entry or the assaults, had no knowledge that one co-offender was armed with a machete, and spent only a brief time at the Tempe premises, largely remaining in the courtyard. These factual differences distinguished his position from the co-offenders when applying the parity principle drawn from Green v The Queen (2011) 244 CLR 462.

The sentencing judge gave considerable attention to the offender's long history of poly-substance and alcohol abuse, which began in his teenage years and escalated to the point where, on the night of the offence, he was under the influence of alcohol, prescription medications, ice, heroin and GHB simultaneously. Applying the principles from R v Fernando (1992) 76 A Crim R 58 and Bugmy v The Queen (2013) 249 CLR 571, the court found that this background reduced the offender's moral culpability and diminished the weight to be given to general and specific deterrence. Unlike the co-offenders, however, the offender could not rely on youth as a mitigating factor.

The court also noted an unfavourable custodial record, including seven infractions since being remanded, among them drug possession and assault or fighting incidents. The Sentencing Assessment Report described the offender's attitude toward his offending as "blasé" and his acceptance of responsibility as limited. Despite this, his willingness to engage with drug and alcohol intervention programs was acknowledged.

Taking together the objective seriousness of the offence, the subjective factors, the modest 5% sentencing discount, and parity with co-offenders, the court imposed a total term of 2 years and 4 months imprisonment. Special circumstances were found, with the Crown conceding the point, resulting in a non-parole period of 1 year and 2 months rather than the standard proportion, to allow for an extended period of supervision on release.

Orders Made

  • The offender was convicted of aggravated break and enter and commit a serious indictable offence under s 112(2) of the Crimes Act 1900.
  • A non-parole period of 1 year and 2 months, commencing 5 October 2022 and terminating 4 December 2023, was imposed.
  • The balance of term runs from 5 December 2023 to 4 February 2025 (also 1 year and 2 months).
  • The offender's parole eligibility date was set at 4 December 2023.

Key Takeaways

  • The parity principle required the District Court to identify and weigh genuine differences between co-offenders before imposing sentence, including differences in their roles, the facts agreed upon, additional matters taken into account on Form 1 documents, and the discounts available for early guilty pleas.
  • A significantly lower level of participation in an offence committed in company, including no direct involvement in violence or forced entry and no knowledge of the presence of weapons, can materially reduce an offender's moral culpability even where the charge is the same as that faced by more active co-offenders.
  • Under the Fernando and Bugmy principles, entrenched poly-substance abuse bearing on an offender's conduct at the time of an offence is capable of reducing moral culpability and tempering the weight given to deterrence, even where the offender does not have youth as an additional mitigating consideration.
  • A 5% sentencing discount for a plea of not guilty, contrasted with the 25% utilitarian discount received by co-offenders who pleaded guilty early, produced a materially longer sentence in relative terms, illustrating the practical sentencing consequences of plea timing.
  • Special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 justified extending the balance of term beyond the standard ratio, reflecting the court's view that a longer period of post-release supervision was warranted given the offender's rehabilitation needs.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 44(2)

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
- R v Fernando (1992) 76 A Crim R 58
- R v Henry (1999) A Crim R 149; [1999] NSWCCA 111
- R v Millwood [2012] NSWCCA 2