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District Court 27 October 2023

R v Bell and Cubby

[2023] NSWDC 581

Assault & violenceTheft & propertyPublic order & justice offences
CRIME SENTENCE ROBBERY ARMED WITH AN OFFENSIVE WEAPON BREAK ENTER AND STEAL

Citation: R v Bell and Cubby [2023] NSWDC 581
Court: District Court of New South Wales
Date: 27 October 2023
Judge(s): Bourke SC DCJ

Background

Two offenders, referred to here as Bell and Cubby, appeared before the District Court for sentencing on a series of offences committed across a short period in late July 2022 in the inner Sydney area. The offences included armed robbery, robbery, break and enter and steal, and a number of related matters taken into account on Form 1 documents (a procedural mechanism by which additional admitted offences are placed before the court and taken into account in the overall sentence without recording separate convictions).

The central offence linking both men was an armed robbery at a café on Glebe Point Road on 26 July 2022. Bell entered the café shouting that he had a knife and took cash from the till. Cubby simultaneously grabbed one of the owners by the neck and, on the way out, took three tablets from a table. The two café owners were the victims of that offence.

Cubby faced a significantly broader range of charges spanning several days. These included breaking into a residential terrace at Forest Lodge and stealing a vehicle, a bag snatch on Sussex Street, and an armed robbery at an EzyMart convenience store at Randwick where he wielded a tyre iron and screwdriver. Bell's additional Form 1 matters involved driving a vehicle without consent and leaving a petrol station without paying.

  • What sentences were appropriate for each offender, taking into account the objective seriousness of each offence?
  • What discount should be applied for early guilty pleas?
  • How should the court apply totality principles to avoid a crushing sentence while still acknowledging multiple discrete offences against different victims?
  • Whether special circumstances existed to justify adjusting the standard ratio between head sentence and non-parole period.
  • Whether backdating of sentences was appropriate, and if so, to what date.
  • Whether Cubby should be referred to the Drug Court for consideration of a compulsory drug treatment program.

Decision

Bourke SC DCJ sentenced both offenders, noting that each had pleaded guilty at the earliest opportunity and accordingly applied a 25% discount for the utilitarian value of those pleas. The maximum penalties, being 20 years for armed robbery under s 97 and 14 years for robbery under s 94(a) and break and enter under s 112(1)(a) of the Crimes Act 1900, served as important guideposts in the sentencing exercise.

The court assessed the objective seriousness of each offence and took into account the personal circumstances of both offenders, including psychological reports that were directed to be forwarded to Justice Health. The court noted Bell's younger age as a relevant mitigating consideration.

In respect of Cubby, the court applied totality principles and determined that some degree of accumulation of sentences was necessary to reflect the fact that each offence was a discrete criminal act committed against a different victim. The court found special circumstances existed based on the risk of institutionalisation, given the amount of time Cubby had already spent in custody, and the need for meaningful supervision in the community following release. This finding justified a non-parole period that represented a greater than usual proportion of the head sentence.

Cubby's sentence was backdated to 10 September 2022 rather than the date his custody became solely referable to the current proceedings (25 October 2022). The court did this to give Cubby some benefit reflecting what might have occurred had all his matters, including those already dealt with, been sentenced together. At the conclusion of the sentencing remarks, counsel raised Cubby's potential eligibility for the compulsory drug treatment program, noting his non-parole period exceeded 18 months, and the court agreed to make a referral to the Drug Court.

Orders Made

  • Cubby received an aggregate head sentence of five years imprisonment, commencing 10 September 2022 and expiring 9 September 2027.
  • A non-parole period of three years was imposed, expiring 9 September 2025.
  • A finding of special circumstances was made in Cubby's case.
  • Psychological reports for both offenders were directed to be sent to Justice Health.
  • Cubby was referred to the Drug Court for consideration of his case for a compulsory drug treatment program.

(Note: The full terms of Bell's sentence are referenced in the judgment as having been delivered and noted by the parties, but the specific orders for Bell were not reproduced in the portion of the judgment provided.)

Key Takeaways

  • In applying totality principles to an offender with multiple discrete offences against separate victims, the District Court held that some notional accumulation of sentences remained appropriate even where an aggregate sentence was imposed.
  • A finding of special circumstances can be grounded in the risk of institutionalisation and the need for extended post-release supervision, particularly where an offender has a significant history of prior custody.
  • Backdating a sentence beyond the period directly referable to the current charges is available where doing so reflects the likely outcome had related matters been dealt with together, giving the offender a fair practical benefit.
  • An early guilty plea resulting in a 25% utilitarian discount remains a significant factor in the sentencing calculus for serious indictable offences, even where the objective seriousness of the conduct is high.
  • A non-parole period exceeding 18 months may enliven eligibility for the Drug Court's compulsory drug treatment program, and referral can be made at the conclusion of the sentencing proceedings on the application of defence counsel.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 94(a), 97, 112(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Attorney-General's application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1) (2002) 56 NSWLR 146
- Bugmy v The Queen (2013) 249 CLR 571
- R v Millwood [2012] NSWCCA 2
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 273 ALR 324
- BP v R [2010] NSWCCA 159
- R v Henry and Others (1999) 106 A Crim R 149