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District Court 10 March 2023

R v Pallister

[2023] NSWDC 643

Assault & violenceTheft & property
CRIME DISPOSING OF STOLEN PROPERTY

Citation: R v Pallister [2023] NSWDC 643
Court: District Court of New South Wales
Date: 10 March 2023
Judge: Scotting DCJ

Background

The offender pleaded guilty in the Local Court to armed robbery contrary to s 97(1) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 20 years imprisonment. He also asked the court to take into account a related offence of disposing of stolen property (a serious indictable offence) on a Form 1 schedule.

The robbery occurred in the early hours of 19 March 2022 on George Street, Sydney. The offender approached the victim under the pretence of asking for the time, then restrained him from behind and held a sharp object to his neck before demanding and taking his mobile phone. The entire incident was captured on CCTV. Police located the offender nearby shortly afterwards, and the stolen phone was found in the possession of a companion.

The offender had a lengthy and troubled personal history, including childhood exposure to domestic violence, time in foster care, sexual abuse while in youth custody, significant drug dependency, and diagnosed mental health conditions. He was an NDIS participant with case management support in place.

  • What sentence was appropriate for an armed robbery offence where the offender pleaded guilty in the Local Court?
  • What discount applied to the sentence by reason of the early guilty plea?
  • Whether special circumstances existed to justify adjusting the ratio between the non-parole period and the head sentence.
  • How the offender's mental health, background, and personal circumstances affected the sentencing assessment.
  • How the Form 1 offence (disposing of stolen property) was to be taken into account.

Decision

Scotting DCJ applied the standard approach to factual findings on sentence: adverse findings required proof beyond reasonable doubt, while findings favourable to the offender were assessed on the balance of probabilities, consistent with R v Olbrich (1999) 199 CLR 270. The court took into account the purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999 and the relevant aggravating and mitigating factors under s 21A.

The offender received a 25% discount on his sentence by reason of the guilty plea entered in the Local Court, pursuant to s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999. The court also applied the guideline judgment in Attorney General's Application No 1 of 2022 when dealing with the Form 1 matter.

The court accepted that the offender was genuinely contrite. His evidence was described as polite, articulate, and thoughtful, and his written apology to the victim, the court, and the community was accepted as sincere. His complex mental health conditions, including addiction, were found to have contributed to the offending and to make his time in custody more onerous.

A finding of special circumstances was made under the sentencing legislation. The court identified the offender's complex mental health and addiction issues as matters best addressed in the community, his eligibility for NDIS-funded support, the risk of institutionalisation, and the benefit of extended parole supervision as justifying a longer-than-standard parole period relative to the head sentence. COVID-19 restrictions were also noted as having made custody more onerous.

Orders Made

  • The offender was convicted of armed robbery with an offensive weapon contrary to s 97(1) of the Crimes Act 1900 (NSW).
  • A term of imprisonment of 5 years was imposed, with a non-parole period of 2 years.
  • The sentence was backdated to 27 December 2022 to account for presentence custody, with partial accumulation on the balance of a parole period.
  • Non-parole period expires: 26 December 2024.
  • Head sentence expires: 26 December 2027.
  • The offender becomes eligible for parole on 26 December 2024.
  • The disposing of stolen property offence was taken into account on a Form 1 schedule.

Key Takeaways

  • A guilty plea entered in the Local Court attracted a 25% reduction in the sentence under s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999, applied after all other sentencing factors were weighed.
  • Special circumstances were established where the offender's complex mental health conditions and addiction issues were better addressed through community-based treatment, supported by existing NDIS funding, and where a risk of institutionalisation was identified.
  • Genuine remorse, assessed through the offender's demeanour, his letter of apology, and observations recorded in a psychologist's report, was treated as a mitigating factor under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999.
  • The District Court confirmed the R v Olbrich framework governs factual findings at sentence: facts adverse to the offender must be proved beyond reasonable doubt, while favourable facts are accepted on the balance of probabilities.
  • COVID-19 restrictions on prisoners were taken into account as a factor making the sentence more onerous, consistent with an emerging line of sentencing practice in New South Wales courts.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 97(1), 188(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A, 25D(2)(a)

Cases
- Attorney General's Application No 1 of 2022 (2002) 56 NSWLR 147 (guideline judgment on Form 1 offences)
- Legge v The Queen [2007] NSWCCA 244
- R v Henry (1999) 46 NSWLR 34
- R v Olbrich (1999) 199 CLR 270