Citation: R v Trinh [2023] NSWDC 58
Court: District Court of New South Wales
Date: 10 February 2023
Judge: Bennett SC DCJ
Background
The offender pleaded guilty to three counts of armed robbery under s 97(1) of the Crimes Act 1900, each carrying a maximum penalty of 20 years' imprisonment. The offences took place across a nine-day period in February 2022, targeting two pharmacies in the Ryde area of Sydney. In each case, the offender entered the premises carrying a knife with a 30-centimetre blade concealed in a drawstring bag.
The offences were focused on prescription opioids and other controlled medications, including oxycodone, dexamphetamine, and diazepam. The offender wore a surgical mask to conceal his identity and, on one occasion, closed the front door of the pharmacy and flipped the entry sign to "closed" while the robbery was in progress. He threatened staff with the knife on each occasion and directed victims to bow or crouch down before leaving.
The offender was arrested, held in custody, and later granted bail to participate in a residential rehabilitation program. He pleaded guilty early in proceedings and expressed remorse before the court.
Legal Issues
- What aggregate sentence was appropriate for three offences of armed robbery under s 97(1) of the Crimes Act 1900, bearing in mind both objective seriousness and the offender's subjective circumstances?
- What discount applied to reflect the early guilty plea under s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999?
- How should pre-sentence custody, time in residential rehabilitation, and bail conditions be brought to account in fixing the commencement date of the sentence?
- Whether special circumstances existed to justify a non-parole period shorter than the statutory default, to allow an extended parole period for rehabilitation.
- Whether the offender was eligible for referral to the Drug Court program under s 18B of the Drug Court Act 1998.
Decision
The court imposed an aggregate sentence of 4 years and 6 months' imprisonment under s 53B of the Crimes (Sentencing Procedure) Act 1999, commencing 19 August 2022 and expiring 18 February 2027. The non-parole period was set at 2 years and 3 months, expiring 18 November 2024. Without the plea discount, the sentence assessed for each individual offence would have been 3 years and 4 months; a 25% discount was applied to each, reflecting both the practical utility of the early plea and the court's finding of genuine remorse and contrition.
The court accepted that the offender's drug dependence was a relevant factor but declined to treat it as a full mitigant. His Honour noted that the offender was not robbing pharmacies to fund a drug habit in the ordinary sense; rather, he was seeking to acquire drugs he could no longer obtain through prior arrangements. The offences were not impulsive, given the degree of preparation involved, including masking his appearance, using the same knife across multiple offences, and employing a consistent method of threatening staff and controlling the scene.
General deterrence was given appropriate weight. Specific deterrence was treated as less significant in the circumstances. The court acknowledged that the offender's capacity for judgement was impaired to some degree by his drug use and brought this to account. All sentencing purposes under s 3A of the Crimes (Sentencing Procedure) Act 1999 were considered engaged, and the court was satisfied that no penalty other than imprisonment was appropriate.
Special circumstances were found, based on the need for the offender to have an extended period on parole to support reintegration into the community. The court also referred the offender to the Drug Court for assessment of his suitability to enter the Drug Court program under s 18B of the Drug Court Act 1998.
Orders Made
- The offender was convicted on each of the three counts of armed robbery.
- An aggregate sentence of 4 years and 6 months' imprisonment was imposed, commencing 19 August 2022 and expiring 18 February 2027.
- A non-parole period of 2 years and 3 months was set, expiring 18 November 2024.
- The sentence was backdated to 19 August 2022 to account for pre-sentence custody, time in residential rehabilitation, and bail conditions.
- The offender was referred to the Drug Court as a convicted eligible offender for assessment under s 18B of the Drug Court Act 1998.
Key Takeaways
- An early guilty plea attracted a 25% discount under s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999, applied to the sentence identified as appropriate after synthesising objective and subjective factors, not as a mechanical reduction of the maximum.
- Drug dependence may reduce the weight given to specific deterrence, but it does not automatically reduce the objective seriousness of armed robbery, particularly where the offending is planned and repeated across multiple occasions.
- Pre-sentence custody, time spent under the constraints of a residential rehabilitation program, and restrictive bail conditions were all brought to account in backdating the commencement of the sentence.
- Special circumstances under the Crimes (Sentencing Procedure) Act 1999 were found where an extended parole period was needed to support an offender's rehabilitation and community reintegration, justifying a non-parole period below the statutory ratio.
- Where an offender is sentenced for drug-related offending, the District Court may refer them to the Drug Court for program assessment under s 18B of the Drug Court Act 1998, even where a term of imprisonment is imposed.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 25D(2)(a), 53B; Part 4 Division 1A
- Drug Court Act 1998 (NSW), s 18B
Cases
- DPP Commonwealth v De La Rosa (2010) 79 NSWLR 1
- R v Henry [1999] NSWCCA 111