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District Court 26 October 2023

R v Inglis

[2023] NSWDC 453

Assault & violenceTheft & propertyPublic order & justice offences
CRIME ROBBERY ARMED WITH OFFENSIVE WEAPON

Citation: R v Inglis [2023] NSWDC 453
Court: District Court of New South Wales
Date: 26 October 2023
Judge: Mahony SC DCJ

Background

The offender, a 22-year-old Wiradjuri man, was sentenced for three offences arising from two separate incidents in 2022. The first was an armed robbery at a tobacconist in Sydney's CBD on 21 June 2022. The second set of offences occurred on 27 October 2022 in Newcastle, involving a prolonged group assault on a tram and the offender's subsequent possession of the victim's stolen mobile phone.

The Sydney offence was committed while the offender was on parole and subject to an intensive correction order. His parole was revoked following that offending, but he was released on bail in October 2022, only to commit the Newcastle offences seven days later. He has been continuously in custody since 28 October 2022.

The offender's criminal history spans 229 pages and dates back to age 14. The sentencing judge noted that the longest period the offender had spent in the community was approximately three months. The court identified significant background factors, including profound deprivation, mental health difficulties, cognitive issues, and the absence of appropriate support and rehabilitation services throughout his life.

  • What aggregate sentence was appropriate for three offences committed while the offender was on conditional liberty?
  • How should the principles of proportionality and totality apply given the offender's extensive custodial history and concurrent sentences imposed elsewhere?
  • What weight should be given to the offender's background of deprivation, mental health issues, and Indigenous heritage under the principles in Bugmy v The Queen?
  • Whether the principle of parity applied, given that co-offenders were dealt with in the Children's Court for less serious offences.
  • What date should the aggregate sentence be backdated to, and whether a Drug Court referral was appropriate?

Decision

The court imposed an aggregate sentence of four years and six months imprisonment, with a non-parole period of two years and six months. The sentence was backdated to commence on 15 November 2022, reflecting the time the offender had already spent in custody and the need for substantial concurrency with other sentences he was serving.

In relation to the Sydney offence, the court noted the offender had walked behind a shop counter, held scissors to the victim's neck, and taken between $700 and $800 in cash plus ten to twelve cartons of cigarettes. The offence was committed while the offender was on parole and subject to an intensive correction order, which weighed heavily as an aggravating factor.

The Newcastle offences involved a sustained assault on a tram lasting approximately two minutes, during which the offender repeatedly punched and kicked a seated victim. The accessory charge arose from the offender taking possession of the victim's mobile phone after becoming aware it had been stolen from the victim's backpack. The court recorded that an escalation in the seriousness of offending was identified in a breach of parole report.

The court found that the principle of parity had no relevant application because all co-offenders were dealt with in the Children's Court for different and less serious charges. The court also ordered a referral to the Drug Court under the Drug Court Act 1998 to assess whether the offender was eligible for a compulsory Drug Treatment Order, reflecting the court's recognition of chronic drug use as a key risk factor.

Orders Made

  • Conviction entered for robbery armed with an offensive weapon (s 97(1), Crimes Act 1900)
  • Conviction entered for accessory after the fact to robbery in company (s 97(1) and s 349(2), Crimes Act 1900)
  • Conviction entered for assault occasioning actual bodily harm in company (s 59(2), Crimes Act 1900)
  • Aggregate sentence of 4 years and 6 months imprisonment imposed under s 53A of the Crimes (Sentencing Procedure) Act 1999
  • Non-parole period of 2 years and 6 months, commencing 15 November 2022 and expiring 14 May 2025
  • Balance of term of 2 years, terminating 14 May 2027
  • Referral to the Drug Court under s 18B of the Drug Court Act 1998 to assess eligibility for a compulsory Drug Treatment Order
  • Court file endorsed "referred to Drug Court – CDTCC referral"

Key Takeaways

  • Offences committed while on parole and subject to conditional liberty orders carry significant aggravating weight in sentencing, particularly where the offender reoffended within days of being released.
  • Under the principle established in Bugmy v The Queen, a background of profound deprivation and disadvantage remains relevant at sentencing regardless of the length or seriousness of an offender's criminal history; the District Court applied this principle in the context of an Indigenous offender with well-documented mental health and cognitive difficulties.
  • Parity with co-offenders dealt with in the Children's Court does not arise where those co-offenders faced different, less serious charges in a different jurisdiction.
  • An aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 allows the court to impose a single term covering multiple offences while still reflecting the totality and proportionality principles.
  • A Drug Court referral under s 18B of the Drug Court Act 1998 is available in circumstances where chronic drug use is identified as a key risk factor, even where a substantial term of imprisonment has been imposed.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 59(2), 97(1), 349(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
- Drug Court Act 1998 (NSW), s 18B

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1
- BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159
- Carroll v R [2015] NSWCCA 219
- Chung v R [2017] NSWCCA 48
- KT v R (2008) 182 A Crim R 112; [2008] NSWCCA 51
- Owens v R [2017] NSWCCA 16