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District Court 14 December 2023

R v Windley

[2023] NSWDC 662

Assault & violenceTheft & property

Citation: R v Windley [2023] NSWDC 662
Court: District Court of New South Wales
Date: 14 December 2023
Judge: Haesler SC DCJ

Background

The offender, a 47-year-old Aboriginal man, pleaded guilty to aggravated robbery with infliction of actual bodily harm under s 91(5)(1) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 20 years imprisonment. The offence occurred on 9 March 2023 at a Woolworths supermarket car park in southern Wollongong.

The offender ran up behind a 76-year-old woman as she pushed her trolley toward her car, grabbed her handbag from the trolley, and pulled it free when she resisted. Both fell to the ground, though the victim fell considerably harder. As the offender fled, he also retrieved the victim's mobile phone from the ground. He used the stolen cash to buy an energy drink and methylamphetamine.

Police tracked the phone and arrested the offender the following day. He made full admissions on arrest, expressed immediate self-disgust at what had happened to the victim, and repeated his remorse in open court at sentencing, directly apologising to the victim who was present.

  • How objectively serious was the offence, and how should the Henry guideline judgment apply to a robbery without a weapon?
  • What weight should the victim's physical and psychological injuries carry in sentencing?
  • How should the court balance significant aggravating factors (prior robbery convictions, vulnerability of the victim) against mitigating factors (early guilty plea, demonstrated remorse, a lengthy crime-free period, drug addiction, acquired brain injury, and childhood trauma)?
  • Whether special circumstances existed to justify a longer-than-standard parole period to allow for rehabilitation on release.

Decision

Objective seriousness: Haesler SC DCJ assessed the offence as very serious, notwithstanding the prosecution's submission that it fell below the middle of the range. The victim's age, vulnerability, total unawareness of the approaching threat, and the injuries sustained all elevated the seriousness. The court acknowledged that no weapon was involved and that the offence was spontaneous rather than planned, but noted that these features did not diminish the gravity of the harm caused to an elderly member of the community going about ordinary daily activities.

Victim impact: The court read the victim's impact statement aloud in open court. The victim sustained lacerations requiring sutures, bruising, and shoulder injuries. She had not fully regained use of her left hand at the time of sentencing. She also experienced significant ongoing psychological consequences, including anxiety when others walked behind her and a general loss of confidence in public spaces. The court accepted her account without reservation.

Guideline judgment and general deterrence: The court noted its obligation under s 42A of the Crimes (Sentencing Procedure) Act 1999 (NSW) to take guideline judgments into account, referring specifically to R v Henry (which addressed armed robbery). While Henry was not directly on point given the absence of a weapon, the court drew on its reasoning to reinforce that courts must send a clear message that violent offending against elderly members of the community will be punished severely. Drug addiction was acknowledged as relevant context but expressly could not excuse the offending.

Subjective factors and synthesis: The court gave full weight to mitigating factors including the early guilty plea (attracting the statutory 25% reduction), genuine remorse, a crime-free period of approximately ten years following earlier rehabilitation, the offender's drug addiction, acquired brain injury, and childhood trauma. Prior robbery convictions from earlier in the offender's life disentitled him to leniency ordinarily afforded first offenders, but the subsequent crime-free period gave the court some confidence that rehabilitation remained achievable. The court found special circumstances warranting a longer parole period to support the offender's engagement with residential rehabilitation programs and NDIS support on release.

Orders Made

  • The offender was convicted of aggravated robbery with infliction of actual bodily harm.
  • Total sentence: 3 years and 2 months imprisonment.
  • Non-parole period: 1 year and 11 months, commencing 10 March 2023, with eligibility for parole consideration from 9 February 2025.
  • Balance of sentence (parole period): 1 year and 3 months, to be served in the community subject to Community Corrections supervision.
  • Release to parole is subject to a direction by the State Parole Authority, conditional on adequate conditions being in place and community safety considerations being addressed.

Key Takeaways

  • Drug addiction, even severe addiction, cannot excuse violent offending but remains a relevant consideration in sentencing: it assists the court in understanding the offending, its causes, and prospects for rehabilitation.
  • A crime-free period of approximately ten years following earlier offending, achieved through rehabilitation, was treated as meaningful evidence of the offender's capacity to reintegrate into the community, notwithstanding prior robbery convictions.
  • Where a robbery victim is elderly and vulnerable, the absence of a weapon and the impulsive rather than planned nature of the offence do not prevent a finding that the offence was very serious.
  • The District Court confirmed its obligation under s 42A of the Crimes (Sentencing Procedure) Act 1999 (NSW) to take the Henry guideline into account even where the offending does not precisely match the guideline's template, requiring careful attention rather than mechanical application.
  • Under the Munda v Western Australia principle, sentencing courts carry an obligation to vindicate the dignity of victims of violent crime and express the community's disapproval of the offending, alongside weighing mitigating factors.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 91(5)(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 42A

Cases:
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 (guideline judgment on robbery sentencing)
- Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600 (vindicating victims of violent crime)
- Moodie v R [2020] NSWCCA 160 (obligation to apply guideline judgments)
- Thach v R [2018] NSWCCA 252 (crime-free periods as relevant to sentencing)
- Sevastopoulos v R [2011] NSWCCA 201 (rehabilitation and reintegration)
- R v Marinos [2003] NSWCCA 136
- Bradley v R (Court of Criminal Appeal (NSW), 26 October 1993, unreported)